Opinion
Index no. 650656/2018
11-07-2018
CHEFS DIET ACQUISITION CORP., CHEFS DIET NATIONAL CO. LLC d/b/a GOURMET DAILY, INC. and KEVIN GLODEK, Plaintiff(s) v. PAUL GHIRON, MONIQUE HAZEL and CRYSTAL SPOON CORP., and JOHN DOES 1-10, Defendant(s)
NYSCEF DOC. NO. 62
DECISION/ORDER
Motion Seq. No. 2
Recitation, as required by CPLR §2219(a) , of the papers considered on the review of this motion is as follows:
| PAPERS | NUMBERED |
|---|---|
| Notice of Motion and Affidavitsand Exhibits Annexed | 1 |
| Answering Affidavits and Exhibits Annexed | 2 |
| Replying Affidavits | 3 |
| Sur-Reply Affidavits |
1. The action is dismissed as against Crystal Spoon for lack of service of process. The affidavits of service filed in the action show service was effected on Mr. Ghiron, Ms. Hazel and William Kutner on behalf of Crystal Spoon. The Plaintiff alleges in the moving papers that service on Crystal Spoon was proper because service was made on Mr. Ghiron as an officer of the corporation. The Affidavit of Service however contradicts their position. Service on Mr. Ghiron was only made on Mr. Ghiron as an individual. In addition, to the extent that at oral argument Plaintiff's counsel also argued that service was proper because Mr. Kutner, a sales associate was served, this argument is also unavailing. See CPLR §311(a). Accordingly, the action as against Crystal Spoon is dismissed in its entirety.
2. The First Cause of Action for defamation is dismissed the action was not commenced until February 9, 2018 and the cause of action accrued no later than February 26, 2016. See CPLR §215(3).
3. The Second and Third Causes of Action, for injurious falsehood and intentional interference with business, respectively, are reformulations of the defamation claim and are therefore dismissed as time barred for the reasons set forth above. Entertainment Partners Group, Inc. v Davis, 198 A.D.2d 63, 603 N.Y.S.2d 439 (1st Dept. 1993); CPLR §215(3).
4. The Fourth Cause of Action for breach of contract is also dismissed. The Verified Complaint discusses the Contract in paragraph 78. Paragraph 78 of the Verified Complaint provides:
On or about November 20, 2018, 2013 CDAC and Crystal Spoon entered into a Food Production Agreement (hereinafter, "FPA"), wherein Crystal Spoon was to work closely with CDAC to curate a varied menu subject to CDAC's approval, and render food production service as more specifically defined in the FPA.
There simply are no allegations in the Verified Complaint which indicate that the FPA (re: the contract) was between the Plaintiff and Mr. Ghiron and
Ms. Hazel. Therefore, even taking all of the allegations set forth in the Verified Complaint as true, there is no theory upon which relief can be granted based on breach of contract as to relates to Mr. Ghiron or Ms. Hazel. Accordingly, the Fourth Cause of Action is dismissed.
And is ORDERED that the caption of the case is hereby amended to: CHEFS DIET ACQUISITION CORP., CHEFS DIET NATIONAL CO. LLC d/b/a GOURMET DAILY, INC. and KEVIN GLODEK,
5. The Fifth Cause of Action for conversion is not dismissed against Mr. Ghiron or Ms. Hazel because conversion has a three year statute of limitations and the movants have failed to establish when this claim accrued. See CPLR §214(3); Harlem Capital Center v. Rosen & Gordon, LLC, 145 A.D.3d 579, 44 N.Y.S.3d 36, 2016 N.Y. Slip Op. 08589 (1st Dept. 2016).
6. The Sixth Cause of Action for Declaratory Judgment is dismissed because as indicated above Mr. Ghiron and Ms. Hazel are not plead as parties to the contract and as such could not be in breach of the contract that the plaintiff does not allege that they are a party to, and for the reasons set forth above the action is dismissed as against Crystal Spoon.
7. The Seventh Cause of Action for Property Based Trade Secret Misappropriation is not dismissed because Misappropriation has a 3 year statute of limitations and the movants have failed to establish when this claim accrued. See CPLR §213(2); CDx Labs., Inc. v Zila, Inc., 162 A.D.3d 970, 79 N.Y.S.3d 285, 2018 N.Y. Slip Op. 04692 (2nd Dept. 2018).
8. The Eighth Cause of Action for Contract Based Misappropriation of Trade Secrets is dismissed because the contract is between the Plaintiff and Crystal Spoon and not Mr. Ghiron and Ms. Hazel, and as such, even taking the allegations as true, there is no theory upon which relief can be granted.
Affirmation in Opposition ¶38.
For the avoidance of doubt, CDAC is Chefs Diet Acquisition Corp.
Per the above, the action is dismissed as against Crystal Spoon.
Plaintiff(s)
-against- PAUL GHIRON, MONIQUE HAZEL, and JOHN DOES 1-10, Defendant(s) And it is further ORDERED that counsel for the defendants shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119) who are directed to mark the court's records to reflect the new caption of the action; and it is further ORDERED that service of this order upon the Clerk of the Court shall be made in hard-copy format if this action is a hard-copy matter or, if it is an e-filed case, shall be made in accordance with the procedures set forth in the Protocol on Courthouse and the County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh). Dated: November 7, 2018
/s/_________
Hon. Andrew Borrok
J.S.C.