| Fada Intl. Corp. v Cheung |
| 2008 NY Slip Op 10194 [57 AD3d 406] |
| December 30, 2008 |
| Appellate Division, First Department |
| Fada International Corp., Appellant, v Rowena Cheung etal., Respondents. |
—[*1] Kauff McClain & McGuire LLP, New York (J. Patrick Butler of counsel), forrespondents.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered December 5, 2007,which granted defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Plaintiff does not allege that its former employee, defendant Cheung, stole its customer list orany confidential information. Rather, it maintains that the use of its client contact information, ofwhich Cheung was aware from her 20 years on the job, to solicit business for her new companyconstituted a misappropriation of confidential information. Defendants did not steal theinformation, and since plaintiff's "customers are readily ascertainable outside the employer'sbusiness as prospective users or consumers of the employer's services or products," the tradesecret protection does not attach (Leo Silfen, Inc. v Cream, 29 NY2d 387, 392 [1972]). Inthe absence of a restrictive covenant, the nondisclosure agreement requiring that customer listsnot be revealed cannot be interpreted as a noncompete agreement that protects plaintiff'sgoodwill.
The additional causes of action, for unfair competition and breach of contract, wereduplicative of the causes for misappropriation of confidential information and goodwill. Thefinal cause of action, for breach of the duty of loyalty, was also properly dismissed since there isno claim that defendants used plaintiff's time, facilities or proprietary secrets in setting up theirnew business (Fredric M. Reed & Co. v Irvine Realty Group, 281 AD2d 352 [2001],lv denied 96 NY2d 720 [2001]). Concur—Lippman, P.J., Gonzalez, Nardelli,Buckley and Acosta, JJ.