In a March 2, 2011 decision by Justice Bucaria, the court denied the plaintiff’s motion pursuant to CPLR § 3108 to conduct an out of state deposition of a Maryland limited liability company which, the plaintiff alleged, had entered into an agreement with the defendants to compete against the company which the plaintiff and defendants owned. The court denied the application, finding that the discovery was not necessary to the plaintiff’s prosecution of her action because the gravamen of the complaint was that the defendants refused to cooperate with the plaintiff and provide her with store merchandise, not that they engaged in a competitive business. The court also denied the plaintiff’s motion for a preliminary injunction on the grounds that the plaintiff sought a mandatory injunction to compel the defendants to provide merchandise to a store in Plainview, NY which the plaintiff had not yet demonstrated was opened with the requisite authorization from the defendants.
The court then granted the defendants’ cross-motion to dismiss the complaint for failure to state a cause of action. Although the court rejected the defendants’ arguments that the complaint should be dismissed because there was another action pending in Kings County in which the defendants alleged that the plaintiff opened a New Jersey store without their consent, it found that, giving the plaintiff every possible favorable inference, it was clear that without the defendants’ consent to open the Plainview store, the defendants were not required to provide the plaintiff with merchandise for that very store.
Lubel v Shiloach, Sup Ct, Nassau County, March 2, 2011, Bucaria, J, Index No. 020501/10