FOODS PLUS, INC. v. FRANKEL


54 A.D.2d 706 (1976)

Foods Plus, Inc., Respondent, v. Edward M. Frankel et al., Appellants

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 12, 1976


Order reversed, on the law, with $50 costs and disbursements, and motion granted. No findings of fact were presented for review.

Plaintiff contends that its marketing program and customer lists are entitled to protection as trade secrets. Defendants moved for summary judgment and, by their affidavits, made a prima facie showing that the first cause of action lacks merit. Plaintiff was therefore bound to come forward with proof of evidentiary facts showing a triable issue as to the allegations of the said cause of action (see O'Hara v Gardner Adv., 32 A.D.2d 632). Plaintiff failed to state evidentiary facts showing the uniqueness of its marketing program and, absent such a showing, its program is not entitled to trade secret protection (cf. Peerless Pattern Co. v Pictorial Review Co., 147 App Div 715). Since plaintiff's customers are readily ascertainable outside of its business, trade secret protection will not attach to its customer lists (see Leo Silfen, Inc. v Cream, 29 N.Y.2d 387).


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