STARLIGHT LIMOUSINE SERVICE INC v. CUCINELLA (2000)

In an action, inter alia, to recover damages for breach of duty and wrongful interference with business relations, the plaintiffs appeal from an order of the Supreme Court, Rockland County (Sherwood, J.), dated October 13, 1999, which granted the defendants' respective motions for summary judgment dismissing the complaint and denied their cross motion for partial summary judgment on the issue of liability.

ORDERED that the order is affirmed, with one bill of costs.

 The Supreme Court properly granted the defendants' respective motions for summary judgment.   Solicitation of an entity's customers by a former employee or independent contractor is not actionable unless the customer list could be considered a trade secret, or there was wrongful conduct by the employee or independent contractor, such as physically taking or copying files or using confidential information (see, WMW Mach. Co. v. Koerber AG, 240 A.D.2d 400, 658 N.Y.S.2d 385;  Amana Express Intl. v. Pier-Air Intl., 211 A.D.2d 606, 621 N.Y.S.2d 108;  Heldman v. Douglas, 33 A.D.2d 695, 306 N.Y.S.2d 213).   The defendants engaged in no wrongful conduct and the plaintiffs did not establish that their customer list constitutes a confidential trade secret.

 “[A] trade secret must first of all be secret” (Ashland Mgt. v. Janien, 82 N.Y.2d 395, 407, 604 N.Y.S.2d 912, 624 N.E.2d 1007).   The record demonstrates that the plaintiffs failed to take any measures to require the defendants to guard the secrecy of the customer list during the defendants' service with the plaintiffs, or to prevent the defendants from using the information contained in the customer list once they left the plaintiffs' service (see, Delta Filter Corp. v. Morin, 108 A.D.2d 991, 485 N.Y.S.2d 143;  Wiener v. Lazard Freres & Co., 241 A.D.2d 114, 672 N.Y.S.2d 8).   Further, notwithstanding the plaintiffs' expenditures of time and money in compiling the customer list, this type of information can be acquired with no extraordinary effort from nonconfidential sources and therefore is not entitled to trade secret protection (see, Leo Silfen, Inc. v. Cream, 29 N.Y.2d 387, 328 N.Y.S.2d 423, 278 N.E.2d 636;  WMW Mach. Co. v. Koerber AG., supra;  American Executive Limousine Serv. v. Nudo, 122 A.D.2d 755, 505 N.Y.S.2d 643).

MEMORANDUM BY THE COURT.