Core Dev. Group LLC v Spaho

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Core Dev. Group LLC v Spaho 2019 NY Slip Op 33053(U) October 11, 2019 Supreme Court, New York County Docket Number: 152584/2019 Judge: W. Franc Perry Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 10/15/2019 10:13 AM NYSCEF DOC. NO. 33 INDEX NO. 152584/2019 RECEIVED NYSCEF: 10/15/2019 ( SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY· PRESENT: PART HON. W. FRANC PERRY IAS MOTION 23EFM Justice ----------------~----------------------------------------------------------------X CORE DEVELOPMENT GROUP LLC, 152584/2019 INDEX NO. 10/10/2019 MOTION DATE Plaintiff, MOTION SEQ. NO. 001 -vBESNICK SPAHO, FATION SPAHO, CORE . MANAGEMENT NY, LLC DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document humber (Motion 001) 3, 6, 8, 9, 10, 16, 19,· 20, 31, 32 were read on this motion to/for · PREL INJUNCTION/TEMP REST ORDR In this action alleging violations of the Lanham Act, plaintiff, Core Development Group LLC, in motion sequence number 001, seeks a preliminary injunction against defendants, Besnick Spaho, Fation Spaho and Core Management NY~ LLC ("defendants"). Defendants oppose the motion. In order to obtain a preliminary injunction, the proponent must demonstrate "( 1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) a balance of equities tipping in its favor." Harris V. Patients Med., P.C., 93 N.Y.S.3d 299 (1st Dep't 2019), citing C.P.L.R. § 6301 and Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 l N.Y.3d 839, 840 (N.Y. 2005). Irreparable injury must be imminent, and not remote or speculative. See Trump on the Ocean, LLC v. Ash;916 N.Y.S.2d 177 (2d Dep't 2011). The granting of such relief is committed to the sound discretion 9f the motion court (Doe v Axelrod, 73 NY2d 748, 532 N.E.2d 1272, 536 N.Y.S.2d44 [1988]). 152584/2019 CORE DEVELOPMENT GROUP LLC vs. SPAHO, BESNICK Motion No. 001 · 1 of 4 Page 1 of4 [*FILED: 2] NEW YORK COUNTY CLERK 10/15/2019 10:13 AM NYSCEF DOC. NO. 33 INDEX NO. 152584/2019 RECEIVED NYSCEF: 10/15/2019 Based ?n the record, plaintiff has simply not met its burden to obtain the extraordinary relief sought against defendants. Plaintiff does not identify any imminent or irreparable injury. aq\sent a preliminary injunqtion. Plaintiff waited four years to bring the instant claims, which stem from transactions that purportedly occ4rred in and before 2015. 'Plaintiff made the instant motion, on March 11, 2019: (NYSCEF No. 3). Defendants opposed the motion on June 7, 2019. (NYSCEF No. 8). Plaintiff then stipulated to multiple adjournments of the return date after defendants submitted their opposition. (NYSCEF No. 10, 16). Plaintiff then amended its complaint on July 15, 2019, and filed its reply c;m the same date. (NYSCEF No. 18, 19). Plaintiff failed to appear for oral argument on October 10, 2019and the court, base~ on its review of the submissions, denied the motion on the record and directed the defendants to submit a proposed order to the court. Notonly has plaintiff failed to demonstrate imminent or irreparable injury absent the granting of a preliminary injunction, plaintiff has failed to demonstrate a likelihood of success on the merits or that the balance of the equities tip in its favor. Plaintiffs conclusory allegations are not supported by proof. Plaintiff claims that "by \vrongfully holding Core Management out as part of Core, it is attempting to deceive, and has in fact deceived and misled ·and confused the ., public in violation of the Lanham Act." (NYSCEF Doc. Nos. 4, 18, iii! 38-42). The Lanham Act expressly forbids false or misleading descriptions or 'representations of fact "in commercial advertising or promotion" concerning "the nature, characteristics, qualities, or geographic origin of ... goods, services, or commercial activ'ities." 15 U.S.C. § l 125(a)(l)(B). To establish a false advertising claim under Section 43(a) of the Lanham Act, a plaintiff must prove the following elements: (1) the defendant has made a false or misleading statement; (2) the ,false or misleading statement has actually deceived or has the capacity to deceive a substantial 152584/2019 CORE DEVELOPMENT GROUP LLC .vs. SPAHO, BESNICK Motion No. 001 ,, 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 10/15/2019 10:13 AM NYSCEF DOC. NO. 33 INDEX NO. 152584/2019 RECEIVED NYSCEF: 10/15/2019 portion of the intended audience; (3) the deception is material in that it is likely to influence purchasing decisions; (4) the defendant placed the false or misleading statement in interstate commerce; and (5) the plaintiff has been injured as a result of the misrepresentation, either by direct diversion of sales or by a lessening of goodwill associated with its products. S. C.,Johnson & Son, Inc. v. Clorox Co., 241F.3d232, 238 (2d Cir. 2001); Cashmere & Camel Hair Mfrs., Inst. v. Saks F(fihAve., 284 F.3d 302, 310-11 (1st Cir. 2002). Plaintiffs motion seeking a preliminary injunction is not supported by any proof; there c are no documents or affidavits submitted that support tli'e concl~sory and speculative claims alleged in the amended complaint. Rather, plaintiff summarily concludes that defendants placed "misleading representations into interstate commerce when they published them to the internet and on marketing material to potential clients and to anyone connected to the internet" and that defendants "acts are causing and will continue to cause ,I~laintiff irreparable harm in the nature of loss of control over its reputation; and loss of substantial consumer goodwill." (NYSCEF Doc. No. 18, ~~ 54, 56). Plaintiff has failed to demonstrate who the defendants deceived; how the deception influenced anyone; or how the plaintiff was injured. As such, . . . plaintiff has failed to demonstrate a likelihood of success on the merits. Finally, a balance pf the equities does not tip in plaintiffs favor. As noted, plaintiff waited four years to bring the instant claims, which stem from transactions that purportedly occurred in and before 2015. Indeed, defendants have demonstrated that plaintiff has beeri operating in full awareness of defendants' business for the last four years and plaintiff has failed to sustain its burden to support the issuance of a preliminary injunction against defendants. Waiting four years to seek the relief herein aptly demonstrates that the harm alleged is not 152584/2019 CORE DEVELOPMENT GROUP LLC vs. SPAHO, BESNICK Motion No. 001 3 of 4 Page 3.of 4 [*FILED: 4] NEW YORK COUNTY CLERK 10/15/2019 10:13 AM NYSCEF DOC. NO. 33 INDEX NO. 152584/2019 RECEIVED NYSCEF: 10/15/2019 imminent; indeed, the allegations in the amended complaint state that it has been occurring since 2015. (NYSCEF Doc. No. 18, ~~ 29-31; ~ 53). As the Court of Appeals has observed, "because preliminary injunctions prevent the . . litigants from taking actions that they are otherwise legally entitled to take in advance of an adjudication on the merits, they should be issued cautiously and in accordance with appropriate procedural safeguards." Un~formed Firefighters Ass'n of Greater New Yorkv. City of New York, 79 N.Y.2d 236, 241, 590 N.E.2d 719, 581 N.Y.S.2d 734 (1992); see also, e.g., Margolies v. Encounter, Inc., 42 N.Y.2d 475, 479, 368 N.E.2d 1243, 398 N.Y.S.2d 877 {1977) (a preliminary injunction-" operates as a substantial limitation on the defendant's interests prior to any adjudication of the respective rights of the parties on the merits of the co~trover~y between them"). Plaintiff has failed to meet its burden to support the issuance of a preliminary injunction. Accordingly, it is hereby, ORDERED that plaintiffs motion sequence number 001, seeking a preliminary injunction is denied. • Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied and this constitutes the decision and order of ~he Court. 10/11/2019 DATE . CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: W, FRANC PERRY, J.S.C. ~ CASE DISPOSED GRANTED 0 . · DENIED . NON-F. INAL DISPOSITION GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUD~S TRANSFER/REASSIGN. FIDUCIARY APPOINTMENT 15258412019 CORE DEVELOPMENT GROUP LLC vs. SPAHO, BESNICK Motion No. 001 4 of 4 D OTHER D REFERENCE Page4 of 4

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