JSB Partners, LLC v Colabella

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JSB Partners, LLC v Colabella 2012 NY Slip Op 30443(U) February 22, 2012 Sup Ct, NY County Docket Number: 600524/10 Judge: Joan A. Madden Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY PRESENT: HON. - NEW YORK PART 1 1 JOAN A. MADDEN Justice JSB PARTNERS, LLC INDEX NO. :600524/10 MOTION SEQ. NO. 004 Plaintiff, MOTION DATE: -vCOLABELLA, ET AL. MOTION CAL. NO.: Defendant. The rollowing papol-s, nurnbered 1 to werc I-cad on this motion to-amend and for a preliminary injunction. I Noticc of Motion/ Order to Show Caiise -- hflidavits - Exhibits Answering Arfidavits I- ~. -- Cxhibits PAPEKS NIJMRERED I -. .. . ~ . - ... Replying Affidavits I Cross-Motion: [ 1 Yes I [ 1 No IJpon thc foregoing papers, it is ordered that this motion is decidcd in accordance with the anncxed Memorandum Dccision and Order. Dated: Check one: [ ] FINAL DISPOSITION x 1 NON-FINAL DISPOSITION [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YOKK : PART 11 ..................................... X J S B PARTNERS LLC, Plaintiff, Index No. 600524/10 -againstANDREA COLABELLA, STEVEN SHAPIRO arid CARDEA GROUP INC., Defendants. X J o a n A. Madden, J . : NEW YORK ~61s OFFKX Defendant Andrea Colabella ("Colabella")a n d Sf'e'b!@&'piro ( " S h a p i r o " ) (together "the movants") move f o r injunctive relief pursuant to New York C i v i l R.ights Law ("NYCRL") General Business Law ( " G B L " ) §§ 50 and 51 and 5 1 3 3 , a n d f o r leave t o serve a Second Amended Answer and Counterclaim and to a d d certain counterclaim defendants. Plaintiff JSB Partners LLC ("JSE") opposes t h e m o t i o n only w i t h respect to certain aspects of J S B ' s r e q u e s t for injunctive r e l i e f . JSB i s a n executive recruiting f i r m in Manhattan. Colabella is a recruiter w h o was empl.oyed b y J S B from January 7, 2008 u n t i l November 9, 2009. S h a p i r o was employed b y J-SB as a recruiter from February 7, 2006 until November 9, 2009. Defendant Cardea Group I n c . ("Cardea") is a New York corporation f o u n d e d by Colabella and Shapiro to p r o v i d e professional staffing. In this action, J S B alleges that Colabella and Shapiro breached their respective employment agreements by converting 1 [* 3] JSR s confidential informatior.1 for their own u s e in order t o contact and s o l i c i t JSB s clients during t h e i r employment and f o r 18 months after their employment with JSB e n d e d . The complaint seeks compensatory and punitive darnayes and injunctive relief. Defendants answered t h e complaint and asserted various counterclaims , including a counterclaim seeking t h e recovery of u n p a i . d ccmrnissions pursuant to L a b o r L a w 5 190. Ry interim order dated September 22, 2011, this court granted, without opposition, that part of the motion seeking leave t.o Eile a Second Amended Answer and Counterclaim and to add certain counterclaim defendants. As to the movants request for injunctive relief, it seeks to enjoin J S B from using the ernail accounts assigned to CoJ.abella and Shapiro, who resigned from JSB on November 9, 2009. Defendants maintain that such use violates GBL 5 133 and NYCRI, S§ 50 and 51. In support of their request, the rnovants submit evidence that after Colabella resigned, J S B sent emails from Colabella s email account on January 11, 2010, March 11, 2010, and March 26, 2010. J S B did not send any emails from Shapiro s email account. J S B c o u n t e r s t h a t : the movants have not shown any i r r e p a r a b l e harm warranting a grant of injunctive relief, and that the movants have known about the emails since filing the complaint over a year ago. J S B also notes that it has not sent an ernail 2 [* 4] from Colabella s email account since March 26, 2010, and t - h a t no cmails were sent from Shapiro s account, and that it has agreed not to send any emai1.s from either account in the ruture. However, JSB maintains that it has a right to continue to use the ernail accounts for 1egit.imate business purposes. On the September 22, 2011 return date of the motion, the parties entered into a stipulation in which JSB agreed that iI, would respond to any outside inquiries by clients and candidates seeking services from either defendant by advising s u c h persons that Ms. Colabella and Mr, Shapiro are no longer employed by [JSB] ( the Stipulation ). The parties a l s o agreed to submit letter briefs to the court addressing the continued use [by J S B ] of work email addresses previously assigned to either defendant (Colabella or Shapkro) .I In their letter brief, the movants argue that. under NYCRL §§ 50 and 51 and GEL 5 133, J S B is prohibited from conducting business by falsely implying a connection between JSB and Colabella and Shapiro, its former employees, and that maintaining the email accounts which are associated with Colahella and Shapiro viol.ates these statutes. The movants also assert that JSB did not notify them that it w o u l d keep the email accounts active and monitor them indef-initely,and point to a provision in the Employee Handbook permitting employees to use J S B s computer systems ¬or personal use. 3 [* 5] JSR responds that the cmail. a c c o u n t s belong to it and were used in furtherance of JSB s busincss purposes d u r i n g the r r m v a n t s employment with it, and Lhat the accounts have historical and archival value to J S B . In particular, JSB asserts that t h e identity of job applicants who dealt wit.11 Colabella or Shapiro during Lheir employment with JSB is confidential information belonging to J S B arid t h a t if a job applicant contacts these accounts, such contact is a business opportunity belonging to JSB. A preliminary injunction is a drastic remedy, and thus should not be granted unless the movant demonstrates a clear r i g h t . to s u c h relief. Citv of New York v 330 Continental, LLC, 60 AD3d 226, 234 (1 Dept 2009) ; Peterson v Corbin, 275 A D 2 d 35 [2d Dept], lv dismissed, 95 N Y 2 d 919 (2000). Entitlement to a preliminary injunction requires a showing o ¬ (1) the likelihood of success on the rnerit:s, (2) irreparable injury absent the granting of preliminary injunctive relief, and (3) a balancing of the equities in the movant s favor. C P L R 6301; N o b u Next Door, LLC v Fine Arts I l o u s . , Tnc., 4 NY3d 839 (2005); Aetna Ins. Co. v Capasso, 75 NY2d 860 119901). If a n y one of these three requirements is not satisfied, the motion must be denied. Faberqe Intern., I n c . v Di Pino, 109 AD2d 235 (13t Dept 1985). Moreover, [ p ]roof establishing these [requirements] must be by a f f i d 3 v j . t and other competent p r o o f with evidentiary detail. Scott v. Mei, 4 [* 6] 219 AD2d 181, 182 (1.'" Dept 1996). Here, the movants has not. made a sufficient showing to warrant grantinq them a preliminary injunction based on the alleged violat-ion of GBL 5 133 or 5 5 50 and 51 through J S B ' s continuing use of their email accounts. Section 133 of the GELL "protects trade names from unlawful infrinyemenL by prohibitinq t-he use of someone else's name, style or symbol as part of one's own name wiLh a n inLent to deceive the public." U - N e e k , Inc. v. Wal-Mart. Stores, Inc., 147 F Sugp 158, 176 (SD NY 2001) (internal c i t a t i o n s arid q u o t a l ; i o n s omitted). To be entitled to relief under the statute, it must be shown that the use of the trade name is intentional a n d likely to cause confusion, mistake or deception. Frank's Rest., Inc. v. Lauramar Enterprises, Inc. , 273 A D 2 d 319 ( 2 d Dept 2000). The movants have not demonstrated that the JSB's use of their email accounts constitutes a violation of GBL movants' § 133, and in particular that JSB used t h e names as part of JSB's name, or that any such use was intended to mislead the public. With respect to the claims under NYCRL, section 51 provides, ' GBI, section 133 provides, in part, that [n]o person, firm or corporation shall., with the intent. to deceive or mislead the public, assume, adopt- or use as, or as part: of, a corporate, assumed or trade name, for advertising purposes or for purposes of Lrade, or a n y other purpose any name desiqnation or style or symbol or s i m u l a t i o n thereof, which may deceive or mislead lrhe public. . . " " 5 [* 7] in part, that: Any person whose name, portrait or p i c t u r e is used within this state f o r advertising purposes or for purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so u s i n g his name, portrait o r picture, to prevent and restrain the use thereof; and may also sue and recover damages f o r a n y injuries sustained by reason of s u c h use... To state a cause oE action under NYCRL § 502 and/or 51, a plaintiff must alleye (i) the usc of h i s or her name, portrait, or picture, (ii) for the purposes of advertising or trade, (iii) without his or h e r c o n s e n t . Welch v Mr. Christmas Inc., 5 7 N Y 2 d 143, 147 (1982); Molina v. Phoenix Sound Inc., 2 9 7 AD2d 595 (1" Dept 2002). Even assuming a r g u e n d o that the three emails sent by J S B from Colabclla's account provide violated sections 50 and 51 of NYCRL, the movants cannot show injunctive relief is warranted as JSB has agreed not to send any more emails from the movants' accounts and to advise any clients or candidates sending emails to the accounts that the movants are no longer employed by JSB. Furthermore, the movants cannot show irreparable harm, as any lost business opportunities resulting from the t h r e e emails can 2 S e c t i o n 50 provides that " [a] person, firm, corporation t h a t uses for advertising purposes, or for the purposes of t r a d e , the name, portrait or picture of any living person without having first obtaj.ned written consent of s u c h person . . . is guilty of a misdemeanor. " 6 [* 8] be remedied with money damages. St-erlinq Fifth Associates v. Caraentille Carp., Inc,, 5 A D 3 d 328 (1"' Dept 2004). Moreover, as J S B has agrccd to notify a l l clients and candidates using the email a c c o u n t s that the rnovants are no longer employed by J S B , JSB's limited use of the email accounts w o u S d not. appear to violate the NYCRL, or to resu1.t in any irreparable harm to the movants. Finally, in view of J S B ' s position that there are leyi,timate business purposes for malntaining the email accounts and JSB's agreement to restrict its use of such accounts, the equities balance in favor of denyi-ng injunctive relief. In view of the above, it is ORDERED that, e x c e p t to the ext:ent that JSB has agreed not to send a n y further emails from the email accounts of the movants a n d to advise any clients or candidates sending emails to the accounts that the movants are no longer employed by J S B , the motion for a preliminary injunction enjoining JSB's u s e of the email accounts is denied. DATED: F e b r u a r y 2 2012 ;:OIJNTY 7 NEW YORK CLERKS OFFICE

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