Advanced Arch Grilles, Inc. v Coco
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Advanced Arch Grilles, Inc. v Coco 2011 NY Slip Op 32655(U) October 5, 2011 Sup Ct, Nassau County Docket Number: 005958-11 Judge: Timothy S. Driscoll 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- STATE OF NEW YORK SHORT FORM ORDER Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court ------------------------------------------------------------------- 1C ADVANCED ARCH GRILLES, INC., Plaintiff, TRIALIIAS PART: 20 NASSAU COUNTY Inde1C No: 005958- Motion Seq. No. -against- Submission Date: 9/23/11 JAMES R. COCO, SR., JAMES R. COCO, JR., AND JC ENTERPRISES DISPLAY FIXTURE CO. , INC. d/b/a ARCHITECTURAL GRILLE DIVISION, Defendants. --------------------------------------------------------------------1C Papers Read on this Motion: Amended Order to Show Cause, Supplemental Affirmation, Supplemental Affidavit, Affidavit and E1Chibits............................ Memorandum of Law in Support......................................................... Affirmation in Opposition, Affidavit in Opposition and E1Chibits.... Supplemental Affirmation in Support and E1Chibits........................ This matter is before the cour Arch Griles , on the Order to Show Cause fied by Plaintiff Advanced Inc. (" Plaintiff' or " Company ) on June 14 2011 and submitted on September 23 2011 (motion sequence # 1). The Cour refers Plaintiffs Order to Show Cause to a conference on October 12 2011 at 9:30 a. m. based on the Cour' s conclusion that this application is inextricably intertined with a related matter pending before the Cour and should be considered in conjunction with the pending motions in that related matter. The related matter In the Matter of the Application of James R. Coco Sr., the Holder of More than 20 Percent of All Outstanding Shares of Advanced Arch Griles Index Number 1930- 11 (" Related Action ), is [* 2] scheduled for a conference before the Cour on October 12 2011 at 9:30 a. , pursuant to a prior decision of the Cour in the Related Action. The so-ordered stipulation dated June 17 2011 (Ex. A to Tenedios Supp. Aff. in Supp. ) shall remain in effect pending fuer Order of the Cour. BACKGROUND A. Relief Sought Plaintiff moves for an Order , 1) pursuant toCPLR Aricle 63 , granting Plaintiff a Temporar Restraining Order, Preliminar Injunction and Permanent Injunction , restraining and enjoining the Defendants from a) providing goods or services of any natue , directly or indirectly, to any competitor of the Company; and b) providing goods or services of any nature directly or indirectly, to any customer of he Company; and c) disclosing and/or utilizing the Company s trade secrets and proprietar information , including but not limited to customer lists and preferences, and pricing information; d) providing any information obtained from the Company either directly or indirectly, or arising out of any of the Defendants ' ownership in employment by, or performance of services for the Company, in whole or in par, to any other individual or entity; e) soliciting or attempting to solicit business from, or engage or attempt to engage in any business with any client , prospective client , customer, prospective customer subcontractor or prospective subcontractor of the Company, or of any affliates of the Company, or to compete with the existing or prospective business of the Company, within a 75 mile radius of any client, customer , or location of the Company, whether directly or indirectly, in any capacity whatsoever and whether individually or for a competitor or subcontractor of the Company; f) using the Architectual Grile Division trade name, or any similar name; g) representing that they are affiliated with Advanced Arch Grlles Group LLC; h) soliciting or attempting to solicit any sales representatives or employees of the Company to work for , or invest in, any business venture in which Defendants James R. Coco , Sr. (" Coco Sr. ) and James R. Coco , Jr. (" Coco Jr. ), or either of them , have any direct or indirect financial interest; and i) accessing a.l1Y of the Company s documents or records , of whatever nature , including but not limited to hard copies and electronically stored files; 2) directing the Defendants to retu to the Company, on or before the retur date of ths Order to Show Cause , all files and other documents ofthe Company, taken or obtained by any Defendant , of whatever natue , including but not limited to electronically stored fies; 3) directing the Defendants to make available to the [* 3] Company for inspection and electronic retrieval and copying all electronic fies , other data (i. generated by and/or stored on any computer and/or storage media floppy disks , hard drive , hard disks backup tapes), or other electronic data used by a Defendant from Januar 1 2008 to date. Such items include , but are not limited to , e-mail and other electronic communcations word processing documents , spreadsheets , data bases, calendars , telephone logs , contact manager information , internet usage files , offlne storage or information stored on removable media, information contained on laptops or other portable devices and network access information; 4) directing the Defendants to disclose all customers and potential customers including names and addresses, contact persons , and dates of contact, any orders received description of product and prices charged , solicited by any of the Defendants , on the retur date of the Motion; 5) directing the Defendants to disclose all suppliers and subcontractors and potential suppliers and subcontractors , including names and addresses , contact persons , and dates of contact , any orders received , description of product and prices charged , solicited by any of the Defendants , on the retu date of the Motion; 6) directing all of the Defendants to provide computer passwords and any other information so that the Company may have access to the information contained in their computers; 7) directing the Defendants to immediately provide an accounting of all monies received by the Defendants; 8) pursuant to CPLR attchment and/or constrctive trst against 6201 , granting an all of the assets of the Defendants; and 9) granting an inversion of priority, and expedited discovery, and directing that the Defendants appear at the offices of the Company s counsel , or at some other location to be determined by the Cour , for an examination before tral to begin at a date within the next 30 days , as Ordered by the Cour. Defendants Coco , Sr. , Coco , Jr. and JC Enterprises Display Fixtue Co. , Inc. d//a Architectual Grile Division B. The Paries ' oppose Plaintiffs application. History This action involves similar paries and issues as the Related Action. In the Related Action , Petitioner Coco Sr. seeks dissolution of the Company pursuat to BCL 11 04-a, based on the allegation that Danel L. Roeper (" Roeper ), a 60% shareholder in the Company, has engaged in oppressive conduct towards Coco, Sr. By decision dated July 28, 2011 in the Related Action ("Related Decision ), the Cour granted Coco Sr.'s application to fie an amended petition to add Coco Jr. as a petitioner. In the [* 4] Related Decision, the Cour also directed that the other motions pending before the Cour in the Related Action shall be the subject of a conference on October 12 2011 at 9:30 a. , at which time the Cour wil address whether counsel for the paries wish to provide the Cour with supplemental submissions in connection with the pending motions , and/or file new motion(s) in light of the amendment that the Cour permitted. In support of the Order to Show Cause Instant Motion ), Roeper affrms sub judice that , following the fiing of the motions in the Related Action , he leared of other improper acts committed by the Defendants. Roeper avers that 1) " at a point in time curently unown " (Roeper Supp. Aff. at 3), Coco Sr. downloaded an entire drive from a computer server owned by the Company which contained inter alia price lists , a customer list and drawings some of which constitute trade secrets ofthe Company; and 2) Coco Jr. has improperly solicited a sales representative of the Company named Donald Romano ("Romano ) to invest in a business designed to compete with the Company. In light of these assertions , the Company requests an Order enjoining the Defendants from 1) soliciting Company representatives or employees to work or invest in a business venture in which Coco , Sr. and/or Coco , Jr. have a financial interest; and 2) accessing the Company s documents or records , including hard copies and electronically stored files. Roeper cites other recent events that, he submits , support an award of injunctive relief. Roeper affrms that Coco , Sr. accessed the Company s computer system on October 22 2010 using his remote access which provided him full access to the Company s fie directory and company records. Coco , Sr. created two folders for the purose of transferring the entire drve to an internet protocol (" IP" ) address located in Faringdale. The drive contained inter alia the Company s price lists , technical drawings and marketing folders. Roeper provides a computer snapshot of the folders and the contents of the file folders (Ex. A to Roeper Aff. in Supp. Roeper affirms that " it would appear" (Roeper Aff. in Supp. at 7) that these records were used by Coco , Sr. to create orders for products that Defendants intend to sell in a competing business. Romano , a sales representative for the Company, affirms that he received a telephone call from Coco , Jr. on or about June 10 2011. During this conversation, Coco , Jr. asked Romano whether he was interested in investing in a company he was forming. Romano affrms that it was " my understanding" (Romano Aff. in Supp. at 4) that Coco , Jr. intended to form a [* 5] company that would compete with the Company, and " (b)ased on (my conversation with Coco Jr. ), I believe that I was being asked to invest in a business which was specifically targeting the business line pursued by (the Company), that is , architectural griles (id. at ~ 7). In opposition , Defendants ' counsel submits that the Instat Motion " improperly seeks to render moot the Motions pending before the Cour and the schedule for briefing set out by the Cour in the (Related Action)" (Lefkowitz Aff. in Opp. at ~ 2). Defendants ' counsel affirms that the " only new and relevant fact" is that on June 10 , 2011 , Coco , Jr. was fired from his position with the Company. In support , Defendants ' counsel provides a copy of a letter (" Termination Letter ) dated June 9, 2011 , on Company stationery, addressed to Coco , Jr. and signed by Roeper. The letter advised Coco , Jr. that his employment with the Company was terminated as of receipt of the letter. The letter also inter alia 1) "reminded" Coco , Jr. to retu all Company propert before leaving the premises; 2) advised Coco , Jr. that he was forbidden from accessing or copying any Company records; and 3) " reminded" Coco , Jr. of the limitations imposed by the non-compete agreement that he signed. Defendants ' counsel affirms , fuher , that the name "Advanced Architectural Grilles" is a d//a of JC Enterprises Display Fixtues Co. , and has been a d//a ofthat entity for six years. It was never transferred to the Company, or purchased by Roeper or the Company. Coco , Jr. afrms that he was employed by the Company until June 10 , 2011 when he received the Termination Letter. He submits that Defendants filed this motion " seeking to restrain me from metal fabrication under the guise that it would be " competition" with (the Company)" (Coco , Jr. Aff. in Opp. at ~ 2). Coco , Jr. denies ever competing with , or diverting a business opportunity from , the Company. Coco , Jr. avers , fuher , that he and Coco , Sr. previously worked in a family business known as JC Enterprises Fixture Co. , Inc. The Coco family has been involved in the metal fabrication business for eighty (80) years. They created an architectual grlles division and fied a d//a Certificate to engage in business as "Advanced Architectual Grilles. " They also created a distinctive logo , consisting of a capitalized and italicized AAG" which represented this company. When he and his father became involved with the Company, Roeper advised them that he did not want to purchase the business name and logo of Advanced Architectual Grilles AAG" ), but rather wished to operate his company under a different name. It was then that [* 6] Advanced Arch Griles , the Plaintiff in this action , was formed. Coco, Jr. affirms that he hired a crew, developed a business plan and ran educational training seminars for the employees. In support, he provides a curiculum of the in- house training that he organzed (Ex. 3 to Coco , Jr. Aff. in Opp. ), that was required for every AAG employee. Roeper began using the " AAG" mark over the objection of Coco , Jr. and Sr. and Coco , Jr. affrms that if Roeper is using its name , logo or website , he is doing so without authorization. In reply, Plaintiff submits that they have demonstrated , based on the new information provided herein , that it was always Defendants ' intention to compete with Plaintiff. Plaintiff alleges that Defendants attempted to transfer Plaintiffs website in their own name without Plaintiffs consent , and provide documentation in support (Ex. E to Tenedios Supp. Aff. dated September 9 , 2011). That documentation relates to Advanced Arch Griles, Inc. , the company that Coco Jr. and Sr. contend was their own. RULING OF THE COURT The Cour concludes that Plaintiff s Order to Show Cause is inextrcably intertwined with the Related Action, and should be considered in conjunction with the motions pending in the Related Action. Accordingly, the Court refers Plaintiff s Order to Show Cause to a conference on October 12 2011 at 9:30 a. m. The so-ordered stipulation dated June 17 2011 (Ex. A to Tenedios Supp. Aff. in Supp. ) shall remain in effect pending fuher Order of the Cour. ENTER DATED: Mineola, NY October 5 , 2011 lS. ENTERED OCT 12 2011 NASSAU COUNTY COUNTY CLERt' 8 OFFtCE
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