Summary
affirming grant of preliminary injunction on plaintiff's claim for misappropriation of proprietary software
Summary of this case from Barmash v. PerlmanOpinion
June 29, 2010.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered November 2, 2009, which, after a hearing, granted plaintiffs motion for a preliminary injunction as to that portion of the action asserting a claim for misappropriation of trade secrets in connection with certain software tools, unanimously affirmed, with costs.
Before: Andrias, J.P., Saxe, Friedman, Nardelli and Acosta, JJ.
Plaintiff met its burden for the grant of a preliminary injunction by demonstrating (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of the equities in its favor ( Doe v Axelrod, 73 NY2d 748, 750). Based upon the submissions and hearing testimony, particularly from plaintiffs expert witnesses, the court properly found that plaintiff had a protectable trade secret in the proprietary nature of its Q-Tech, Alpha Sources and PIT software and database structure ( see Ashland Mgt. v Janien, 82 NY2d 395, 407).
Although irreparable injury cannot be presumed ( see Faiveley Transp. Malmo AB v Wabtec Corp., 559 F.3d 110, 118 [2d Cir 2009]), it may be established "where there is a danger that, unless enjoined, a misappropriator of trade secrets will disseminate those secrets to a wider audience or otherwise irreparably impair the value of those secrets" ( id.). Here, the court properly determined that plaintiff demonstrated that, without a preliminary injunction barring appellant from the continued use of its trade secrets, plaintiff "would likely sustain a loss of business impossible, or very difficult, to quantify" ( Willis of N.Y. v DeFelice, 299 AD2d 240, 242).
We have considered appellant's remaining arguments, including that the balance of the equities tipped in its favor, and find them unavailing.