Zaiger LLC v. Bucher Law PLLC

Zaiger LLC v Bucher Law PLLC 2024 NY Slip Op 32244(U) July 1, 2024 Supreme Court, New York County Docket Number: Index No. 154124/2023 Judge: Mary V. Rosado 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.

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ------------,----------------------X INDEX NO. 154124/2023 ZAIGER LLC MOTION DATE 06/16/2023 Plaintiff, MOTION SEQ. NO. ------=--00---=²=------- - V -

BUCHER LAW PLLC, DECISION + ORDER ON MOTION Defendant. -------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 1, 96, 97, 98, 99, 100,101,102,103,104,105,106,107,108,109,110,111,112,113,114,115,116,117,118,119,120, 121,¹²²,123,124,128,¹²⁹,137,138,139,140,141,142,143,144,145,146,147,148,149,150,151, 152, 153,154,155, 156,157,158, 159, 160, 161 were read on this motion to/for DISMISS

Upon the foregoing documents, and after oral argument which occurred on October 31,

2023 with Gregory 0. Tuttle, Esq. and Alex Banzhaf, Esq. appearing for Plaintiff Zaiger LLC

("Plaintiff') and Seth K. Kugler, Esq. appearing for Defendant Bucher Law PLLC ("Defendant"),

Defendant's motion for an Order (1) dismissing Plaintiffs claims pursuant to CPLR 321 l(a)(7);

(2) dismissing Plaintiffs claims as a SLAPP suit pursuant to CPLR 3211 (g) and N. Y. Civ. Rights

Law§ 76-a (the "Anti-Slapp Law") and awarding costs and attorneys' fees; and (3) dismissing or

staying this action pending a determination of previously filed Connecticut action (the

"Connecticut Action"); is denied.

I. Background

William Bucher ("Bucher") is the principal of Defendant Bucher Law PLLC (NYSCEF

Doc. 124 at ,r 2). Plaintiff is a New York limited liability company engaged in the practice of law

(NYSCEF Doc. 138 at ,r 7). Plaintiff employed Bucher from August 15, 2022 until March 1, 2023

when Plaintiff terminated his employment (NYSCEF Doc. 1 at ,r 4).

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On May 9, 2023 Plaintiff commenced the instant action against Defendant (NYSCEF Doc.

1). On July 26, 2023 Plaintiff filed, without leave of the Court, an Amended Complaint asserting

causes of action for (1) tortious interference with contractual relations; (2) unfair competition; (3)

misappropriation; (4) unjust enrichment; and (5) violation of New York Judiciary Law §475

(NYSCEF Doc. 129). Specifically, Plaintiff alleges that after Bucher's employment was

terminated he stole the personal information of nearly 34,000 of Plaintiff's clients (the "Client

List") and used those contacts to engage in a solicitation campaign to induce wrongfully Plaintiff's

clients to end their client relationship with Plaintiff (NYSCEF Doc. 129)

On June 16, 2023 Defendant filed the instant motion for an Order (1) dismissing Plaintiff's

claims pursuant to CPLR 3211 (a)(7); (2) dismissing Plaintiffs claims as a SLAPP suit pursuant

to 321 l(g) and N.Y. Civ Rights Law§ 76-a; (3) awarding Defendants costs and attorneys' fees

pursuant to N.Y. Civ Rights Law § 70-a; or (4) dismissing and staying this action due to the

pendency of a preexisting federal action (NYSCEF Doc. 96).

II. Discussion

i. Plaintiff's Amended Complaint is Controlling

Preliminarily, while Defendant argues that Plaintiff's Amended Complaint was untimely,

pursuant to CPLR 3025(a) "[a] party may amend his pleading once without leave of the court

within twenty days after its service, or at any time before the period for responding to it expires,

or within twenty days after service of a pleading responding to it." Further, pursuant to CPLR

321 l(f) the service of a notice of motion under CPLR 321 l(a)(l) "before the service of a pleading

responsive to the cause of action or defense sought to be dismissed extends the time to serve the

[responsive] pleading until ten days after service of notice of entry of the order" (see Roam Capital,

Inc. v Asia Alternatives Mgt. LLC, 194 AD3d 585, 585-586 [1st Dept 2021 ]. Accordingly, by filing

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the instant motion, Defendant's period for responding to Plaintiffs claims is extended until ten

days after a decision on the motion is rendered. Because Defendant's period for responding to

Plaintiffs pleading has not yet expired, Plaintiffs filing of the Amended Complaint is made as of

right and is timely pursuant to CPLR 3025(a).

Further, it is well settled that when an amended complaint is filed it supersedes the initial

complaint leaving it the only complaint in the action (Pomerance v McGrath, l 04 AD3d 440, 442

[I st Dept 2013]). Accordingly, Defendant's motion shall be applied to Plaintiffs Amended

Complaint (NYSCED Doc. 129).

ii. Standard

Pursuant to CPLR 321 l(g), a motion to dismiss under CPLR 321 l(a)(7)

in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action involving public petition and participation as defined in paragraph (a) of subdivision one of section [76-a] of the civil rights law, shall be granted unless the party responding to the motion demonstrated that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law

An action involves public petition and participation if it is "any communication in a place

open to the public or a public forum in connection with an issue of public interest" or if it is "any

other lawful conduct in furtherance of the exercise of the constitutional right of free speech in

connection with an issue of public interest" (see Civil Rights Law § 76-a[l][a]). Indeed, the

implementation of the anti-SLAPP law was a response to the "rising concern about the use of civil

litigation, primarily defamation suits, to intimidate or silence those who speak out" (600 W I 15th

St. Corp. v Von Gutfeld, 80 NY2d 130, 137 n.1 [1992), cert denied 508 U.S. 910 [1993)). In 2020,

the legislature amended the anti-Slapp law to "broaden the scope of the law and afford greater

protections to citizens" (Aristocrat Plastic Surgery, P.C. v Silva, 206 AD3d 26, 28 206 AD3d 26

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[1st Dept 2022] quoting Mable Assets, LLC v Rachmanov, 192 AD3d 998, 1000 [2d Dept 2021],

citing L 2020, ch 250). Whether a matter touches upon the "public interest" is to "be construed

broadly and shall mean any subject other than a purely private matter" (Civil Rights Law § 76-

a[l][d]).

Once a movant has shown that her statement involves public petition and participation, the

burden then shifts to the non-movant. Civil Rights Law Section 76 § 76-(a)(2) provides that a

plaintiff may only recover damages in an action involving public petition and participation if, "in

addition to all other necessary elements, plaintiff shows by clear and convincing evidence that the

allegedly actionable communication was made with knowledge of its falsity or with reckless

disregard of whether it was false".

However, the Appellate Division has held that a clear and convmcmg standard is

inappropriate on a pre-motion to dismiss (Zeitlin v Cohan, 220 AD3d 631, 632 [1st Dept 2023]).

Instead, on a pre-answer motion, the plaintiff must show that the claim has a substantial basis in

law, which the First Department has defined as "such relevant proof as a reasonable mind may

accept as adequate to support a conclusion or ultimate fact" (Karl Reeves, CE.IN Y Corp. v

Associated Newspapers, Ltd., 210 NYS3d 25, 28 [1st Dept 2024]).

Whether there is a substantial basis that a statement was made with knowledge of its falsity

or with reckless disregard of its falsity will be inferred from objective facts, including "the

defendant's own actions or statements, the dubious nature of [her] sources, [and] the inherent

improbability of the story." (Great Wall Medical P.C. v Levine, 74 Misc.3d 1224[A] at *2 [Sup.

Ct., N.Y. County 2022] quoting Coleman v Grand, 523 F.Supp.3d 244, 260 [EDNY 2021]). The

court must consider the pleadings and affidavits to determine if a plaintiff's claim has a substantial

basis in law (CPLR § 3211 [g][2]; Carey v Carey, 74 Misc. 3d 1214[A] at *4 [Sup. Ct., N.Y. County

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2022]). A Plaintiff's failure to defeat a CPLR 321 l(g) motion mandates a defendant be awarded

its costs and attorneys' fees (Civil Rights Law§ 70-a [l][a]).

111. Defendant has Failed to Show that his Statements are Matters of Public Interest

It is well established that "publications directed only to a limited, private audience" are not

matters of public interest (Aristocrat Plastic Surgery, P. C. v Silva, 206 AD2d 26, 30 [l st Dept

2022] see also Huggins v Moore, 94 NY2d 296, 303 [1999] holding that publications directed only

to a limited, private audience are matters of purely private concern). Here, each of Plaintiff's claims

relate to solicitation emails Defendant sent only to Plaintiff's clients included on their Client List

(NYSCEF Doc. 129). The Court finds that these communications were made to a limited, private

audience, as opposed to the public. As such, Defendant has failed to demonstrate that his

statements were matter of public concern. Having failed to demonstrate that his statements were

matters of public interest, Defendant's motion to dismiss Plaintiff's Claims pursuant to CPLR

3211 (g) is denied.

iv. Defendant has Failed to Show that CUTSA Preempts Plaintifrs Claims

Defendant contends that the Connecticut Uniform Trade Secrets Act ("CUTSA") preempts

all of Plaintiff's Claims (NYSCEF Doc. 122 at 6).

The First Department has held that "[i]n the context of tort law, New York utilizes interest

analysis to determine which of two competing jurisdictions has the greater interest in having its

law applied to the litigation" (Elmaliach v Bank of China Ltd, 110 AD3d 192, 202 [l st Dept 2012]

quoting Padula v Lilarn Properties Corp., 84 NY2d 519,521 [1994]).

Here, Defendant contends that Connecticut has the greatest concern with the dispute in

question (NYSCEF Doc. 122 at 6). However, Plaintiff is a New York LLC and Defendant is a

New York PLLC (NYSCEF Doc. 129 at 4). Further, Defendant's sole member and Principal is

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licensed to practice law in New York (NYSCEF Doc. 124 at ,i,i 1-2) and Defendant's alleged

damages were suffered in New York. Moreover, the First Department has held that "New York

has an interest in regulating the conduct of its attorneys" (Engelke v Brown Rudnick Berlack

Israels, LLP, 45 AD3d 324, 326 [1st Dept 2007]). As Plaintiffs claims in this action relate to the

parties' attorney client relationships, the Court finds that New York has the greatest concern with

the dispute in question. As such, Defendant has failed to show that CUTS A preempts Plaintiffs

claims.

v. Defendant's Motion to Dismiss Plaintifr s Complaint Pursuant to CPLR 3211(a)(7) is Denied

Pursuant to CPLR 321 l(a)(7), "[a] party may move for judgment dismissing one or more

causes of action asserted against him on the ground that ... the pleading fails to state a cause of

action .... " In considering a motion pursuant to CPLR 321 l(a)(7) to dismiss a complaint for failure

to state a cause of action, "the court must give the pleading a liberal construction, accept the facts

alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable

inference" (JP. Morgan Sec. Inc. v Vigilant Ins. Co. 21 NY3d 324, 334 [2013]). "[T]he sole

criterion is whether the pleading states a cause of action, and therefore if from its four comers

factual allegations are discerned which if taken together can manifest any cause of action, a motion

for dismissal must fail" (Kus her v King 126 AD2d 446, 467 [1st Dept 1987]).

a. Defendant's Motion to Dismiss Plaintifr s First Cause of Action for Tortious Interference with Contract is Denied

The Court of Appeals has held that a cause of action for tortious interference with contract

"requires the existence of a valid contract between the plaintiff and a third party, defendant's

knowledge of that contract, defendant's intentional procurement of the third-party's breach of the

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contract without justification, actual breach of the contract, and damages (Lama Holding Co. v

Smith Barney Inc., 88 NY2d 413,424 [1996]).

It is well established that "[a ]greements that are terminable at will are classified as only

prospective contractual relations, and thus cannot support a claim for tortious interference with

existing contracts" (American Preferred Prescription, Inc. v Health Mgmt, 252 AD2d 414, 417

[1st Dept 1998]). Moreover, a client "has the absolute right on public policy grounds to terminate

the attorney-client relationship at any time without cause ... " (Demov, Morris, Levin & Shein v

Glantz, 53 NY2d 553, 556-557 [1981]). However, the First Department has held that a plaintiff

may state a claim for tortious interference with a nonbinding contract where the defendant's

alleged conduct "constituted a crime or an independent tort" (Steinberg v Schnapp, 73 AD3d 171,

176 [1st Dept 2010]).

Judiciary Law § 4 79 states that:

[i]t shall be unlawful for any person or his agent. .. to solicit or procure through solicitation either directly or indirectly, legal business, or to solicit or procure through solicitation a retainer, written or oral, or any agreement authorizing an attorney to perform or render legal services, or to make it a business so to solicit or procure such business, retainers or agreements.

Here, Plaintiffs allegations that Defendant stole Plaintiffs client list to solicit improperly the

Firm's clients constitutes a violation of Judiciary Law§ 479, which is an unclassified misdemeanor

(see Ginarte Gallardo Gonzalez & Winograd v Schwitzer, 193 AD3d 614,616 [1st Dept 2021]).

Accordingly, as Plaintiff has alleged that it had valid enforceable contracts with its clients

of which Defendant was aware and that Defendant induced Plaintiffs clients to breach their

contracts causing damages to Plaintiff, the Court finds that Plaintiff has sufficiently stated a cause

of action for tortious interference with contract. Accordingly, Defendant's motion to dismiss

Plaintiffs First Cause of Action for tortious interference with contract is denied.

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b. Defendant's Motion to Dismiss Plaintiff's Second Cause of Action for Unfair Competition is Denied

It is well settled that "the primary concern in unfair competition is the protection of a

business from another's misappropriation of the business' organization or its expenditure of labor,

skill, and money" (Macy's Inc. v Martha Stewart Living Omnimedia, Inc., 127 AD3d 48, 56 [1st

Dept 2015] quoting (Ruder & Finn, Inc. v Seaboard Sur. Co., 52 NY2d 663, 671 [1981]).

Moreover, the First Department has held that"[ a]llegations of a 'bad faith misappropriation of a

commercial advantage belonging to another by exploitation of proprietary information' can give

rise to a cause of action for unfair competition" (Macy's Inc. v Martha Stewart Living Omnimedia,

Inc., 127 AD3d 48, 56 [1st Dept 2015] quoting (Out ofthe Box Promotions, LLCv Koschitzki, 55

AD3d 575, 578 [2d Dept 2008]).

Here, Plaintiffs Amended Complaint alleges that by soliciting Plaintiff's clients,

Defendant has, in bad faith, misappropriated Plaintiff's labors, skills, expenditures and goodwill

(NYSCEF Doc. 129 at ,i,i 103-104). In light of the foregoing, affording Plaintiff the benefit of

every possible favorable inference, the Court finds that Plaintiff's Amended Complaint alleges

facts sufficient to manifest a cause of action for unfair competition. Accordingly, Defendant's

motion to dismiss Plaintiff's Second Cause of Action for unfair competition is denied.

c. Defendant's Motion to Dismiss Plaintiff's Third Cause of Action for Misappropriation is Denied'

The Court of Appeals has held that"[a] plaintiff claiming misappropriation of a trade secret

must prove: (1) it possessed a trade secret, and (2) defendant is using that trade secret in breach of

1Defendant refers to Plaintiffs cause of action for misappropriation as the Fifth Cause of Action (NYSCEF Doc. 122 at 11). While Misappropriation is the Fifth Cause of Action in Plaintiffs original Complaint (NYSCEF Doc. I), Plaintiffs Amended Complaint includes misappropriation as Plaintiffs Third Cause of Action (NYSCEF Doc. 129 at 23). 154124/2023 ZAIGER LLC vs. BUCHER LAW PLLC Page 8 of 12 Motion No. 002

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an agreement, confidence, or duty, or as a result of discovery by improper means" (E.J Brooks

Co. v Cambridge Sec. Seals, 31 NY3d 441,452 [2018)).

In considering whether a customer list constitutes a trade secret, the Court of Appeals has

held that "where the customers are readily ascertainable outside the employer's business as

prospective users or consumers of the employer's services or products, trade secret protection will

not attach ... " (Leo Si/fen, Inc. v Cream, 29 NY2d 387, 392 [1972)). Conversely, "where the

customers are not known in the trade or are discoverable only by extraordinary efforts courts have

not hesitated to protect customer lists and files as trade secrets. This is especially so where the

customer's patronage had been secured by years of effort and advertising effected by the

expenditure of substantial time and money" (Id. at 391-393).

Here, Defendant argues that Plaintiffs cause of action for misappropriation must be

dismissed because the client list is not a trade secret (NYSCEF Doc. 122 at 11 ). However, Plaintiff

alleges that it expended significant time and expense to develop and to safeguard the client list and

that Defendant unlawfully misappropriated the client list through improper means (NYSCEF Doc.

129 at ~~109-110). Affording Plaintiff the benefit of every possible favorable inference, the Court

finds that Plaintiff has alleged sufficient facts to state a claim for misappropriation. Accordingly,

Defendant's motion to dismiss Plaintiffs Third Cause of Action for Misappropriation is denied.

d. Defendant's Motion to Dismiss Plaintiff's Fourth Cause of Action for Unjust Enrichment is Denied 2

To state a claim for unjust enrichment, "[a] plaintiff must allege 'that (1) the other party

was enriched, (2) at that party's expense, and (3) that 'it is against equity and good conscience to

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the business relationship between Bucher and Plaintiff (NYSCEF Doc. 122 at 27). However, the

First Department has held that even where "there is some overlap between the parties and claims,"

it is within the Court's discretion to deny a motion under CPLR 321 l(a)(4) where "the nature of

the relief sought is not substantially the same and the parties are not identical (Wimbledon Fin.

Master Fund, Ltd. v Bergstein, 147 AD3d 644,645 [1st Dept 2017]).

While the parties in the present action are also included in the Connecticut Action and the

two actions have overlapping facts, the causes of action in the Connecticut Action differ

significantly from those asserted here. With respect to the parties to this action, the Connecticut

Action primarily concerns claims by Bucher against Plaintiff for alleged wrongful termination and

breach of employment agreements (NYSCEF Doc. 119). Conversely, this action is centered on

Plaintiff's allegations relating to Defendant's acquisition of Plaintiff's client list and wrongful

solicitation of Plaintiff's clients.

As the relief sought in the Connecticut Action is not substantially the same as that sought

in the instant action, Defendant's motion to stay the proceedings in this action pending a resolution

of the Connecticut Action is denied.

Accordingly, it is hereby,

ORDERED that Defendant Bucher Law PLLC's motion for an Order dismissing Plaintiff

Zaiger LLC's claims pursuant to CPLR 321 l(g) and N.Y. Civ. Rights Law§ 76-a is denied; and

it is further

ORDERED that Defendant Bucher Law PLLC's motion for an Order dismissing Plaintiff

Zaiger LLC' s claims for tortious interference with contract, unfair competition, misappropriation,

unjust enrichment, aiding and abetting fraud and aiding and abetting breach of the duty of loyalty

is denied; and it is further

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ORDERED that Defendant Bucher Law PLLC's motion for an Order dismissing or staying

this action pending a determination of previously filed Connecticut Action is denied; and it is

further

ORDERED that on or before July 23, 2024, the parties are directed to submit a proposed

Preliminary Conference Order to the Court via e-mail to SFC-Part33~Clerk@nycourts.gov. If the

parties are unable to agree to a proposed Preliminary Conference Order, the parties are directed

to appear for an in-person preliminary conference with the Court in Room 442, 60 Centre Street,

on July 24, 2024 at 9:30 a.m.; and it is further

ORDERED that within ten days of entry, counsel for Defendant Zaiger LLC shall serve a

copy of this Decision and Order, with notice of entry, on all parties to this case; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

7/1/2024 DATE RY V. ROSADO, J.S.C.

CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION

GRANTED ~ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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Footnotes

[2] Defendant refers to Plaintiffs cause of action for unjust enrichment as the Sixth Cause of Action (NYSCEF Doc.

[122] at 15). While unjust enrichment is the Sixth Cause of Action in Plaintiffs original Complaint (NYSCEF Doc. 1), Plaintiffs Amended Complaint includes unjust enrichment as Plaintiffs Fourth Cause of Action (NYSCEF Doc.

[129] at 23). 154124/2023 ZAIGER LLC vs. BUCHER LAW PLLC Page 9 of 12 Motion No. 002 [* 9] 9 of 12 permit [the other party] to retain what is sought to be recovered"' (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011 ]). "The essential inquiry in any action for unjust enrichment .. .is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered" (Paramount Film Distrib. Corp. v State, 30 NY2d 415, 421 [1972]). Here, Plaintiff alleges that Defendant was enriched by wrongfully obtaining the client list created by Plaintiff and subsequently inducing Plaintiffs clients to abandon their contracts with Plaintiff (NYSCEF Doc. 129). Plaintiff further alleges that its client base was created at great cost to Plaintiff (Id. at 24). In light of the foregoing, that Plaintiff has alleged sufficient facts to state a cause of action for unjust enrichment. Accordingly, Defendant's motion to dismiss Plaintiffs cause of action for unjust enrichment is denied. 3 vi. Defendant's Motion to Stay this Action Pursuant to CPLR 3211(a)(4) is Denied CPLR 321 l(a)(4) provides that a party may move for judgment dismissing one or more causes of action asserted against him on the ground that "there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires." Further, CPLR 2201 permits the court in which an action is pending to "grant a stay of proceedings in a proper case, upon such terms as may be just." Here, Defendant argues that this action should be stayed pending a resolution of the Connecticut Action because the parties are substantially identical and the actions each arise from 3 While Defendant's motion seeks dismissal of Plaintiffs claims for aiding and abetting a breach of the duty of loyalty and aiding and abetting fraud, defendant's motion to dismiss these claims is moot as they are not included in Plaintiffs Amended Complaint (NYSCEF Doc. 129). 154124/2023 ZAIGER LLC vs. BUCHER LAW PLLC Page 10 of 12 Motion No. 002 [* 10] 10 of 12