ASB Prods, LLC v Njibaloh

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ASB Prods, LLC v Njibaloh 2014 NY Slip Op 31325(U) May 21, 2014 Supreme Court, New York County Docket Number: 152602/2014 Judge: Cynthia S. Kern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ----------------------------------------------------------------------x: ASB PRODUCTIONS, LLC d/b/a ASB COMMUNICATIONS, Plaintiff, I ! j Index: No. 152602/2014 ! -against- DECISION/ORDER OLLIA NJIBALOH, FATOU DIOUF AND ROUGE AGENCY, LLC d/b/a ROUGE PR & CREATIVE AGENCY, Defendants. ----------------------------------------------------------------------x: HON. CYNTHIA S. KERN, J.S.C. Recitation, as required by CPLR 2219(a), of the papers considered in the.review of this motion for: ~~~~~~~~~~~~~~~~~~ ·I :j Papers Numbered ! Notice of Motion and Affidavits Annex:ed.......... ........ ............ ...... Answering Affidavits...................................................................... Replying Affidavits...................................................................... Ex:hibits..... ... ..... .... .... .. .. .. .... ..... ... .. .. .. ..... ..... ... .. ........ ... .. ... ..... .. .. . 1 ·,2 :3 4 1 This action arises out of a dispute between an employer and two former employees. Defendants now move for an Order pursuant to CPLR § 321 l(a)(l) and (3) dismissing plaintiff's complaint based on documentary evidence and on the grounds that plaintiff lacks capacity to sue. Additionally, defendants move for an Order pursuant to BCL § 1321 dismissing plaintiffs J complaint on the ground that it was not authorized to conduct business in the State of New York when this action was commenced. For the reasons set forth below, defendants' motion is denied. d The relevant facts are as follows. Plaintiff is an "international " m~lti-cultural public I relations, advertising and marketing company." Defendants Ollia Njibal9h ("Njibaloh") and [* 2] Fatou Diouf ("Diouf') worked as Account Executives for plaintiff. At tlie time they were hired, both Njibaloh and Diouf signed a Non Disclosuree Agreement (the "ND.A."). Each NDA I included a restrictive covenant which provided that "for a period of one year after the Employee ceases to be employed by the Employer for any reason whatsoever," the employee would not, among other things, Offer to render any public relations, advertising, event management, marketing or other promotional services or solicit the rendition of any such services to any clients, customers 1 or accounts of the Employer who were such at any time during th e one-year period immediately preceding such cessation of the Employee's employment with the Employer to or for the benefit or account of Employee or to or for the benefit or account of any other person or entity. According to plaintiffs complaint, on or about January 15, 2014, plaintiff terminated I Nnjibolah's employment "because it believed it did not have work for he.r to do sufficient to justify her salary." Thereafter, plaintiff alleges that Diouf, who was still employed, secretly ; ·I emailed confidential documents and computer files to Njibolah. On or about February 5, 2014, Diouf quit her employment with plaintiff. Thereafter, on or about March 21, 2014, plaintiff commenced the instant action by filing a summons and complaint. Plaintiff's original complaint listed plaintiff as· "ASB Communications, Inc." However, on or about April 21, 2014, after defendants filed the instant motion, plaintiff filed and served an amended summons and complaint identifying plaintiff as ·I "ASB Productions, LLC d/b/a ASB Communications." The amended complaint is otherwise .; ·I identical to the original and asserts the following causes of action against., defendants: ( 1) breach of fiduciary duty; (2) breach of contract; (3) computer trespass; (4) violations of the Penal Law of the State of New York §§ 156.10, 156.30; (5) conversion; (6) unfair competition (7) unlawful 2 [* 3] interference with contract; (8) unlawful interference with reasonable exp~ctations of economic gain; and (9) civil conspiracy. In the present case, as an initial matter, defendants' motion for an order pursuant to CPLR § 321 l(a)(3) and BCL § 1312 dismissing plaintiffs complaint on the grounds that plaintiff lacks standing to bring the instant action and was not authorized to do business in the State of I New York at the time this action was commenced is denied as moot. Th~ sole basis for defendants' motion to dismiss on these grounds is that plaintiff was named as "ASB Communications, Inc." in the original complaint, which was not Njibaloh and Dioufs actual employer and was not a corporation duly authorized to conduct business ,in the state of New York ¢I at the time this action was commenced. However, this issue is now moot as plaintiff, realizing it had made a mistake by conflating plaintiffs corporate and assumed names, filed an amended summons and complaint on April 21, 2014, properly naming "ASB Productions, LLC d/b/a ASB Communications," as the plaintiff. It is undisputed that ASB Productionk, LLC is the proper i name ofNjibaloh and Doiufs former employer. Additionally, plaintiff has included a report from the Secretary of State website confirming that ASB Productions, LLC was duly organized, formed and registered with the Secretary of State of the State of New York in 1997, and remains I in "active status. To the extent defendants' contend in their reply that plJintiffs filing of the . amended complaint without leave of court was improper, such contention is without merit. Pursuant to CPLR § 3025(a), "[a] party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, :i or within twenty days after' service of a pleading responding to it." When a party makes a preanswer motion to dismiss pursuant to CPLR § 321 l(a), its time to respond to the complaint is 3 [* 4] ' ¢ extended until ten days after service of notice of entry of the order disposing of the motion. CPLR § 321 l(t). Here, as defendants made the instant motion to dismiss, its time to respond to plaintiff's complaint was extended and has not expired. Thus, as plaintiff filed its amended I complaint prior to any order being rendered on this motion, its amended ~ummons and complaint is timely and proper. Additionally, plaintiff's motion for an order pursuant to CPLR § J21 l(a)(l) dismissing I plaintiff's complaint on the ground that the one year restrictive covenant.in the NOA has expired is denied. In order to prevail on a defense founded on documentary evidence pursuant to CPLR § 321 l(a)(l), the documents relied upon must definitively dispose of plaintiff's claim. See 1 Bronxville Knolls, Inc. v. Webster Town Partnership, 221 A.D.2d 248 (1 ~ Dept 1995). Here, the only documentary evidence relied upon by defendants is the NDA itself, :Which does not definitely dispose of any of plaintiff's claims. As an initial matter, contrary to defendants' assertion, the NOA explicitly states that the one year period begins to run from the date "Employee ceases to be employed by the Employer." Thus, as it is undisputed that both Njibaloh ' I and Diouf ceased to be employees in early 2014, the one year period has not yet expired. Further, plaintiff asserts several claims against defendants besides breach of the restrictive covenants provision in the NDA and defendants fail to make any arguments demonstrating how the NOA ¢I definitely disposes of those claims. Finally, defendants' motion for an order dismissing plaintiff's complaint as against Diouf on the ground that plaintiff failed to use her correct legal name in the cap~ion is denied. I Defendants present absolutely no authority for the assertion that failure to use a party's full legal :l name in the caption divests this court with jurisdiction over the party. Indeed, Diouf does not dispute that she is the person plaintiff identifies in the complaint, nor does she argue that she is 4 [* 5] an improper party. Thus, simply put, the fact that defendants named her as "Fatou Diouf' as opposed to "Ndeye Fatou Diouf' does not warrant dismissal at this time. Based on the foregoing, defendants' motion is denied in its entirety. This constitutes the .1 decision and order of the court. Enter: ----~-""-,_°'\(-+--"'~---J.S.C. 5

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