Noble Desktop NYC, LLC v American Graphics Inst., LLC

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Noble Desktop NYC, LLC v American Graphics Inst., LLC 2021 NY Slip Op 30377(U) February 5, 2021 Supreme Court, New York County Docket Number: 656677/2020 Judge: Debra A. James 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 02/08/2021 03:37 PM NYSCEF DOC. NO. 47 INDEX NO. 656677/2020 RECEIVED NYSCEF: 02/08/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK C OUNTY PRESENT: HON. DEBRA A. JAMES PART IAS MOTION 59EFM ·Justice ---------------------------------------------------------------------------X NOBLE DESKTOP NYC, LLC, INDEX NO. 656677/2020 MOTION DATE ·Plaintiff, 02/01/2021 MOTION SEQ. NO. 001 -vAMERICAN GRAPHICS INSTITUTE, LLC,CHRISTOPHER SMITH, ABC COMPANIES, and JOHN DOES, DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14, 15, 16, 17, 18,27,28,29,30,31,32,33,34,35,36, 37,38,39,40,41,42,43,44,45,46 INJUNCTION were read on this motion to/for ORDER Upon the foregoing documents, It appearing to this Court that a cause of action exists in favor of the plaintiff and against the defendant Ame can Graphics Institute, LLC, and that the plaintiff is entitled to a preliminary injunction on the ground that .such defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action and tending to render the judgment ineffectual, plaintiff has demanded and would be ent led to a and the judgment restraining such defendant from the commission or continuance of an act, which, if committed or continued during the pendency of 656677/2020 NOBLE DESKTOP NYC, LLC vs. AMERICAN GRAPHICS INSTITUTE, Motion No. 001 1 of 5 Page 1of5 [*FILED: 2] NEW YORK COUNTY CLERK 02/08/2021 03:37 PM NYSCEF DOC. NO. 47 INDEX NO. 656677/2020 RECEIVED NYSCEF: 02/08/2021 the action, would produce injury to the plaintiff, as set forth in the aforesaid decision, it is ORDERED that the undertaking is fixed in the sum of $ TO BE DETERMINED plaintiff at an posting, EVIDENTIARY with the HEARING County undertaking that the plaintiff, and Clerk of conditioned upon this such Court, if it is finally determined that it was not entitled to an injunction, will pay to the defendant all damages and costs, which may be sustained by reason of this injunction; and it is further ORDERED that defendant American Graphics Institute, LLC, its agents, servants, employees and all other persons acting under the jurisdiction, supervision and/or direction of such defendant, are enjoined and restrained, during the pendency of this action, from doing or suffering to be done, directly or through any attorney, agent, servant, employee or other person under the supervision or control of defendant or otherwise, any of the following acts: Running any classes or providing any services qualify as a "New York Businessn to clients in the "New Territoryn or to individuals resident in the "New Territory" as those terms are defined in the May 1, Purchase Agreement, herein, and that York York 2020 Running any advertisements on its website that markets classes or services described above; and it is further ORDERED that on March 5, 2021, the parties shall appear for an evidentiary hearing via Microsoft Teams, 656677/2020 NOBLE DESKTOP NYC, LLC vs. AMERICAN GRAPHICS INSTITUTE, Motion No. 001 2 of 5 at which testimony Page 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 02/08/2021 03:37 PM NYSCEF DOC. NO. 47 INDEX NO. 656677/2020 RECEIVED NYSCEF: 02/08/2021 will be taken, and documents admitted for a determination of the issue of the reasonable amount of undertaking that plaintiff shall post as a condition of the preliminary injunction, upon submission by any counsel of the standard form request for conf eience at 59nyef@nycourts.gov no more than five days and no less than two days before such hearing date; and it is further ORDERED that counsel are directed to submit to and file with NYSCEF a preliminary conference order or a counter preliminary conference order on March 19, 2021. DECISION To the extent that plaintiff seeks a preliminary injunction that restrains defendants from violating the Purchase Agreement, such relief is unavailable at it would effectively grant plaintiff the ultimate relief. See Moltisanti v East River Housing Corp, 149 AD3d 530, 531 (1st Dept. 2017). With respect to the electronic message dated January 25, 2021 from plaintiff wrongful to solicitation defendant of an concerning independent defendant's contractor, alleged the court notes that such evidence did not exist at the time of the filing of the herein show cause order, time in reply. In any event, and is introduced for the first plaintiff submits, in reply, copy of its contract with such contractor dated June 16, Such contract contradicts plaintiff's contention 656677/2020 NOBLE DESKTOP NYC, LLC vs. AMERICAN GRAPHICS INSTITUTE, Motion No. 001 3 of 5 the ( 2020. that, Page 3 of 5 in [*FILED: 4] NEW YORK COUNTY CLERK 02/08/2021 03:37 PM NYSCEF DOC. NO. 47 INDEX NO. 656677/2020 RECEIVED NYSCEF: 02/08/2021 contravention of 4.5 of the Purchase Agreement, captioned "Non- Solicitation", defendant induced such contractor to terminate his employment or contracting relationship with plaintiff. Nor does plaintiff contradict the evidence in the record that defendant's I employment of or business relationship with such contractor predated the Purchase Agreement and continued thereafter. with respect to its claim that defendant breached Therefore, the "non solicitation" clause of the Purchase Agreement by inducing such contractor to terminate his contract with the plaintiff or to enter into a contract with defendant, plaintiff has not demonstrated a likelihood of success on the merits. However, this this court finds action, plaintiff has that, pending the resolution of demonstrated entitlement to a preliminary injunction that enjoins defendant American Graphics Institute, LLC, "directly or from any further breach of the covenant not to indirectly, engage substantially similar or [plaintiff's] current to or in any directly future business competitive business (including that is with the New York Business} in the New York Territory", as defendant promised under 4.5 of the Purchase Agreement. As the covenant met the standard of reasonableness, plaintiff established a likelihood of success on the merits. Further, as the claim is based on the sale of a business and accompanying good will, irreparable injuries were established without the necessity of showing actual loss of customers. Defendants also failed to prove laches by a showing of unreasonable and 656677/2020 NOBLE DESKTOP NYC, LLC vs. AMERICAN GRAPHICS INSTITUTE, Motion No. 001 4 of 5 Page4of 5 [*FILED: 5] NEW YORK COUNTY CLERK 02/08/2021 03:37 PM NYSCEF DOC. NO. 47 INDEX NO. 656677/2020 RECEIVED NYSCEF: 02/08/2021 inexcusable delay by plaintiff resulting in prejudice to defendant[] creating an equitable estoppel.***There is no showing that defendant changed its position as a result of any delay. Hay Group, Inc v Nadel, 170 AD2d 398, 399-400 (1st Dept 1991) (citations omitted) . CPLR 6312(b) requires that the plaintiff give an undertaking in an amount to be fixed by the court (see Confidential Brokerage Services, Inc. v Confidential Planning ., Corp, 85 AD3d 1268, 1270 [3d Dept 2011]), which "must be 'rationally ~elated to defendant['s] potential damages should the preliminary injunction later prove to have been unwarranted'" (Suttongate Holdings Limited v Laconm Management NV, 159 AD3d 514, 515 [pt Dept 2018]). As neither party has offered any evidence with respect t? that issue, an evidentiary hearing is warranted. 2/5/2021 DE DATE CHECK ONE: CASE DISPOSED X GRANTED D A.MS, J.$~.""' NON·FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 5 GRAPHICS of 5 65667712020 NOBLE DESKTOP NYC, LLC vs. AMERICAN INSTITUTE, D OTHER D REFERENCE Page 5 of5

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