| Beverage Mktg. USA, Inc. v South Beach Beverage Co., Inc. |
| 2009 NY Slip Op 00321 [58 AD3d 657] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Beverage Marketing USA, Inc., Appellant, et al.,Plaintiff, v South Beach Beverage Company, Inc.,Respondents. |
—[*1] Pryor Cashman LLP, New York, N.Y. (Sanford M. Goldman and Tom Ferber of counsel),for respondents.
In an action, inter alia, to recover damages for misappropriation of trade secrets and breachof fiduciary duty, the plaintiff Beverage Marketing USA, Inc., appeals from an order of theSupreme Court, Nassau County (Austin, J.), entered October 22, 2007, which granted thedefendants' motion for leave to reargue and, upon reargument, in effect, vacated so much of aprior order dated April 11, 2007, as denied those branches of the defendants' motion which werefor summary judgment dismissing the causes of action alleging misappropriation of trade secretsand breach of fiduciary duty, and thereupon granted those branches of the defendants' motion.
Ordered that the order entered October 22, 2007 is affirmed, with costs.
A motion for leave to reargue is addressed to the sound discretion of the court which decidedthe prior motion and may be granted upon a showing that the court overlooked ormisapprehended the facts or law, or for some reason mistakenly arrived at its earlier decision (see E.W. Howell Co., Inc. v S.A.F. La SalaCorp., 36 AD3d 653, 654 [2007]; Carrillo v PM Realty Group, 16 AD3d 611 [2005]; Viola v City of New York, 13 AD3d439, 440 [2004]). Contrary to the contention of the plaintiff Beverage Marketing USA, Inc.(hereinafter Beverage), the Supreme Court providently exercised its discretion in granting leaveto reargue.[*2]
The defendants established their prima facie entitlementto judgment as a matter of law dismissing Beverage's cause of action alleging misappropriationof pricing and cost information, distribution plans and strategies, and business plan. Thedefendants demonstrated that this information was available in the marketplace and, in anyevent, with respect to pricing and cost information and distribution plans and strategies, that theydid not make use of it (see Cosmos Forms v American Computer Forms, 193 AD2d 577,579 [1993]; see generally Ashland Mgt. v Janien, 82 NY2d 395, 407 [1993]). Inopposition, Beverage failed to raise a triable issue of fact.
The defendants also established their prima facie entitlement to judgment as a matter of lawon Beverage's cause of action alleging breach of fiduciary duty (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). In opposition, the deposition testimony Beverageproferred was too vague and equivocal to raise an issue of fact as to whether the defendant JohnBello began to secretly incorporate the defendant South Beach Beverage Company, Inc., whilestill in Beverage's employ (see Seaburyv County of Dutchess, 38 AD3d 752, 753 [2007]; Bachurski v Polish & Slavic Fed. Credit Union, 33 AD3d 739, 740[2006]). Moreover, that testimony was insufficient to demonstrate that Bello used Beverage'stime, facilities, or proprietary secrets to secretly incorporate (see Wallack Frgt. Lines v NextDay Express, 273 AD2d 462, 463 [2000]; CBS Corp. v Dumsday, 268 AD2d 350,353 [2000]; Chemfab Corp. v Integrated Liner Tech., 263 AD2d 788, 790 [1999]).Skelos, J.P., Santucci, McCarthy and Dickerson, JJ., concur. [See 2007 NY Slip Op33444(U).]