The following papers read on this motion:Order to Show Cause and Affidavits XNotice of Cross-Motion and Affidavits XMemorandum of Law XAffirmation in Opposition XReply Affirmation XRelief Requested Motion by the plaintiff, Elizabeth Marie D. Sayoc, for an order preliminarily enjoining defendants Geekcaster LLC and Michael Wilson Michael from using the “Foodcaster” name, likeness, and content, entering into business relationships as “Foodcaster,” and representing themselves as “Foodcaster.” Cross motion by the defendants Geekcaster LLC and Michael Wilson Michael for an order pursuant to CPLR 3211(a)(1) and (7) dismissing plaintiff’s complaint based upon documentary evidence and for failure to state a cause of action. The plaintiff submits opposition. The defendants submit reply.BackgroundThe plaintiff initiated this action alleging three causes of action: 1) a judgment declaring plaintiff as the owner and exclusive rights-holder of “Foodcaster;” 2) tortious interference with business contracts; and 3) injunctive relief barring the defendants from using “Foodcaster” name or content.Applicable LawIn order to establish entitlement to a preliminary injunction, the plaintiff must demonstrate (1) a likelihood of success on the merits, (2) irreparable injury absent the grant of such preliminary injunctive relief, and (3) a balance of the equities favoring its position (Doe v. Axelrod, 73 N.Y.2d 748; W.T. Grant Co. v. Srogi, 52 N.Y.2d 496; Manhattan Real Estate Equities Group, LLC v. Pine Equity, NY, Inc., 16 A.D.3d 292). Moreover, the irreparable harm must be shown by the moving party to be imminent, not remote or speculative (Golden v. Steam Heat, 216 A.D.2d 440).On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the Court starts with the presumption that the allegations contained in the plaintiff’s pleadings are true (Becker v. Schwartz, 46 N.Y.2d 401). A motion for failure to state a cause of action “will fail if from [the] complaint’s four corners, [its] factual allegations are discerned which taken together manifest any cause of action cognizable of law, regardless of whether the plaintiff will ultimately prevail on the merits” (Gruen v. County of Suffolk, 187 A.D.2d 560).“The elements of a cause of action alleging tortious interference with contract are: (1) the existence of a valid contract between the plaintiff and a third party, (2) the defendant’s knowledge of that contract, (3) the defendant’s intentional procurement of a third-party’s breach of that contract without justification, and (4) damages” (Nagan Constr., Inc. v. Monsignor McClancy Mem., 117 A.D.3d 1005; White Knight of Flatbush, LLC v. Deacons of the Dutch Congregation of Flatbush, 159 A.D.3d 939).The general rule is that a request for an injunction or a declaratory judgment is premature if the harm to the plaintiff is contingent upon events that may never occur (Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510). An action for a declaratory judgment must be supported by the existence of a justiciable controversy (see CPLR 3001, Premier Restorations of N.Y. Corp. v. New York State Dept. of Motor Vehicles, 127 A.D.3d 1049).Plaintiff’s Order to Show CauseIn support of her request for a preliminary injunction, plaintiff has made conclusory allegations and failed to point to any imminent, nonspeculative harm that would befall her in the absence of a preliminary injunction (see Family-Friendly Media, Inc. v. Recorder Tel. Network, 74 A.D.3d 738). Of note, plaintiff refers to potential clients and potential business rather than enumerating any actual clients or business affected by the defendants’ activities. As plaintiff’s trademark application is still pending, and as business contracts that have not yet been formed, plaintiff relies on speculation and fails to demonstrate imminent harm (Golden, supra).Defendants’ Motion to DismissHere, although the plaintiff alleged that she “began operating business in commerce under FOODCASTER, Inc. via social media platforms” and that she published content, she failed to allege a valid contract between herself and any third party, nor does she allege procurement of a breach by the defendants (Nagan, supra). As such, plaintiff has failed to state a cause of action for tortious interference with contract.Further, with regard to the plaintiff’s cause of action for a declaratory judgment, plaintiff failed to allege the existence of a justiciable controversy in this case, relying instead upon a hypothetical injury which would be contingent upon the occurrence of events which may or may not come to pass at some point in the future, for example the approval of her trademark application and entering into contracts with third parties (see Premier Restorations of N.Y. Corp, supra). As such, plaintiff has further failed to state a cause of action for an injunction or for a declaratory judgment (see Church of St. Paul & St. Andrew, supra).ConclusionAccordingly, it is herebyORDERED that the plaintiff’s order to show cause seeking a preliminary injunction is denied, and it is furtherORDERED that the defendant’s cross-motion to dismiss the plaintiff’s complaint is granted.Dated: December 6, 2018
