Vous êtes sur la page 1sur 18

INDEX NO.

158558/2014

FILED: NEW YORK COUNTY CLERK 12/10/2014 11:23 PM


NYSCEF DOC. NO. 88

RECEIVED NYSCEF: 12/10/2014

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK
BREAKDOWN SERVICES, LTD.,
Plaintiff,
- againstFRANK MORAN, a/k/a STEVE PARNELL, a/k/a JOY SAND, a/k/a STARR
ENTERTAINMENT, d/b/a ACTORS ADVANTAGE; LOUISE YANOFSKY a/k/a BETTINA
SKYE, a/k/a ALICE RAY, d/b/a ACTORS ADVANTAGE; and STEVE RUBIN, a/k/a STEVE
RAY, d/b/a ACTORS ADVANTAGE,
Defendants.

MEMORANDUM OF LAW IN OPPOSITION TO


PLAINTIFFS NOTICE OF MOTION FOR A PRELIMINARY INJUNCTION
Index No.: 158558/2014

TABLE OF CONTENTS

I.

TABLE OF CONTENTS

pg. ii

II.

TABLE OF AUTHORITIES

pg. iii

III.

PRELIMINARY STATEMENT

pg. v

IV.

FACTS

pg. v

V.

PROCEDURAL POSTURE

pg. v

VI.

STANDARD FOR INJUNCTIVE RELIEF

pg. vi

VII.

ARGUMENT

pg. vii

VIII.

POINT I: PLAINTIFFS MOTION FAILS BECAUSE IT


REQUESTS ULTIMATE RELIEF

IX.

pg. vii

POINT II: PLAINTIFFS HAVE NOT ESTABLISHED A


LIKELIHOOD OF SUCCESS ON THE MERITS

pg. viii

X.

POINT III: PLAINTIFFS FAIL TO SHOW IRREPARABLE HARM

pg. xii

XI.

POINT IV: THE BALANCE OF EQUITIES IS NOT IN FAVOR OF GRANTING


INJUNCTIVE RELIEF
pg. xiv

XII.

POINT V: SHOULD INJUNCTIVE RELIEF BE GRANTED, THEY MUST GIVE AN


APPROPRIATE UNDERTAKING
pg. xvi

XIII.

POINT VI: GRANTING THIS INJUNCTION WILL SET A


NEGATIVE PRECEDENT

pg. xvii

XIV. CONCLUSION

pg. xvii

ii

TABLE OF AUTHORITIES
Statutes Cited
CPLR 2309(c)

VIII

CPLR 3211(a)(7)

CPLR 6312

XVI

NY General Business Law 340(1)

XV

NY General Business Law 349

XII

NY Real Property Law 299-A

VIII
Cases Cited

Ahead Realty, LLC v. India House, Inc., 92 A.D.3d 424, 425, 938 N.Y.S.2d 17 (1st X
Dep't 2012)
Ashland Mgmt. Inc. v. Janien, 82 N.Y.S.2d 395, 407, 624 N.E.2d 1007, 1013, 604; XI
N.Y.S.2d 912, 917 (1993)
Click Model Mgt. v Williams, 167 AD2d 279, 280, 561 NYS2d 781 (1990), lv denied IX
77 NY2d 805, 571 NE2d 83, 568 NYS2d 913 (1991)
Cohen v. Department of Social Servs., 37 A.D.2d 626, affd 30 N.Y.2d 571 (1972)

VI

Electrolux Corp. v Val-Worth, Inc., 6 NY2d 556, 567-568, 161 NE2d 197, 190 NYS2d XI
977 (1959)
GFI Sec. LLC v. Tadition Asiel Sec. Inc, 873 N.Y.S.2d 51 (Sup. Ct., N.y, Co., 2008)

XII

Hirschmann v. Hassapoyannes, 2005 NY Slip Op 25521, (Sup Ct, New York County VII
2005)
ITC Limited v Punchgini, 9 N.Y.3d 467; 880 N.E.2d 852; 850 (2007)

J.O.M. Corp' v. Department of Health, 173 A.D,2d 153,154 (1't Dep't 1991)

XII

Jacobowitz v. Jacobowitz, 798 N.Y.S.2d 710; 2004 NY Slip Op 51338(U) (Kings VI


County, 2004).
James v. Gottlieb, 85 A.D.2d 572 (1st Dept 1981)

iii

XII

Klein, Wagner & Morris v. Klein, 186 A.D.2d 631, 633 (2nd Dept 1992)
Livas v Mitzner, 303 AD2d 381 [2d Dept 2003].

XII
XVI

Margolies v Encounter, Inc., 42 NY2d 475, 479 (1977)

XVII

Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY 2d 621 (1968)

XV

OHara v. Corporate Audit Co., 161 A.D.2d 309,310, 555 N.Y.S.2d 82, 84 (1st Dept VII
1990)
St. Paul Fire and Marine Insurance Co v. York Claims Service, 308 A.D. 2d 347,765 VII
N.Y.S 2d 573 (1st Dep't 2003)
Ujueta v. Euro-Quest Corp., 29 AD3d 895 (2d Dept 2006)

XVII

Washington Ave. Assoc. v Euclid Equip., 229 AD2d 486, 487, 645 NYS2d 511 (1996)

IX

William M. Blake Agency, Inc. v. Leon, 283 A.D.2d 423, 424 (2d Dept 2001)

VI

Ying Fung Moy v. Hohi Umeki, 10 AD3d 604 [2d Dept 2004]
Zodkevitch v Feibush, 49 AD3d 424; 854 N.Y.S.2d 373 (1st Dept 2008).

iv

XVI
VI

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK

Index No.: 158558/2014

BREAKDOWN SERVICES, LTD.,


Plaintiff,
- againstFRANK MORAN, a/k/a STEVE PARNELL, a/k/a JOY
SAND, a/k/a STARR ENTERTAINMENT, d/b/a ACTORS
ADVANTAGE; LOUISE YANOFSKY a/k/a BETTINA
SKYE, a/k/a ALICE RAY, d/b/a ACTORS ADVANTAGE;
and STEVE RUBIN, a/k/a STEVE RAY, d/b/a ACTORS
ADVANTAGE,

MEMORANDUM OF LAW

Defendants.
PRELIMINARY STATEMENT
This Memorandum of Law is being submitted in opposition to plaintiffs motion for a
preliminary injunction on the grounds that plaintiff has failed to meet the three pronged test
showing entitlement to injunctive relief.

FACTS
The relevant facts in the instant action are set forth within the duly sworn affidavits of defendants
FRANK MORAN, LOUIS YANOFSKY, and STEVE RUBIN. To provide further background
of plaintiffs business model and how it interacts with the entertainment industry, annexed hereto
as Exhibit A is an explanatory article from Backstage Magazine from 2009.

PROCEDURAL POSTURE
Before discussing the merits of this case, the procedural mechanism chosen by plaintiff is worth
noting, as it belies their stated concerns. Plaintiff makes its application for relief via Notice of
Motion. As this court is aware, the standard operating procedure for obtaining injunctive relief
when a plaintiff is genuinely concerned that his interests are in dire jeopardy is to file for a
Temporary Restraining Order pursuant to Article 63 of the CPLR, in conjunction with the
v

Complaint, and to provide defendants with 24 hours notice of plaintiffs application so as to not
run askew of due process.
In this case, plaintiff made the conscious decision to make this application by Notice of Motion
which, by its nature, requires an extended briefing schedule which would be considered lengthy
by any plaintiffs who were genuinely concerned that their business interests would be irreparably
harmed by their defendants continued actions. Moreover, plaintiff made this motion
approximately two months after they filed their Complaint, despite the fact that some of the
affidavits submitted on plaintiffs behalf were signed and sworn in September.
It is respectfully submitted that, if Plaintiff were so concerned about an imminent danger of
irreparable harm, as indicated in their motion papers, they would have utilized the most
expedient procedural tools afforded them. In light of this, Plaintiffs claims as to the emergency
nature of this motion appear to be disingenuous at best and deceitful at worst.
STANDARD FOR INJUNCTIVE RELIEF
In order to establish entitlement to preliminary injunctive relief, the burden which plaintiff must
fulfill is three-fold: 1) the likelihood of success on the merits in the underlying case (or a prima
facie showing of a right to relief); 2) the likelihood of irreparable harm to the plaintiff if the
injunction is not granted; and 3) that the balance of equities are in the plaintiffs favor. The
second element is the most difficult to fulfill, as plaintiff must show that an eventual monetary
judgment would be insufficient to remedy the alleged harm. See Zodkevitch v Feibush, 49 AD3d
424; 854 N.Y.S.2d 373 (1st Dept 2008). It is also worth noting that these elements must be
shown by affidavit and other competent proof, with evidentiary detail" and "if key facts are in
dispute, the relief will be denied." See Jacobowitz v. Jacobowitz, 798 N.Y.S.2d 710; 2004 NY
Slip Op 51338(U) (Kings County, 2004). A preliminary injunction is a drastic remedy which
should only be granted where the movant has demonstrated in the moving papers a clear legal
right to the relief demanded based upon the undisputed facts. See Cohen v. Department of Social
Servs., 37 A.D.2d 626, affd 30 N.Y.2d 571 (1972); William M. Blake Agency, Inc. v. Leon, 283
A.D.2d 423, 424 (2d Dept 2001).

vi

ARGUMENT
POINT I: PLAINTIFFS MOTION FAILS BECAUSE IT SEEKS THE ULTIMATE
RELIEF PLEAD IN THE COMPLAINT
It has long been held that the court cannot grant the ultimate relief that [a movant] seeks under
the guise of a preliminary injunction. Hirschmann v. Hassapoyannes, 2005 NY Slip Op 25521,
(Sup Ct, New York County 2005). The First Department has ruled that in cases where plaintiff
seeks the ultimate relief requested, pendente lite, the circumstances must be "extraordinary. St.
Paul Fire and Marine Insurance Co v. York Claims Service, 308 A.D. 2d 347,765 N.Y.S 2d 573
(1st Dep't 2003). The First Department has also consistently held that it is not appropriate for the
Court to grant a preliminary injunction that upsets the status quo because removing status quo
thwarts the purpose behind preliminary injunctive relief. OHara v. Corporate Audit Co., 161
A.D.2d 309,310, 555 N.Y.S.2d 82, 84 (1st Dept 1990).

The ad damnum clauses within plaintiffs Complaint prays for: a preliminary and permanent
injunction enjoining defendants fromdisseminating, disclosing or transmitting any of
plaintiffs breakdowns and/or the information contained therein to third parties. This is almost
identical to the relief that plaintiffs are requesting pursuant to the instant motion. Granted,
plaintiffs plea for relief in the Complaint is worded differently than the prayer for relief in the
motion papers, which asks for an order preventing defendants from accessing the breakdowns
site, but they have the exact same effect of preventing defendants from accessing, disseminating,
or in any other way utilizing any information relative to the breakdowns. This would upset the
status quo to plaintiffs benefit, especially in light of the fact that plaintiff has precisely
calculated their damages as shown within the ad damnum clause and explained below, thus
providing plaintiff with the ultimate relief to which it originally plead without the oversight of
due process. Moreover, plaintiff will have absolutely no motivation to pursue this case to a
conclusion if this relief is granted, and is therefore motivated to allow this preliminary injunction
to sit indefinitely, as they will have received what they were ultimately seeking at the outset of
this case.

vii

Accordingly, upon these grounds alone, granting a preliminary injunction is inappropriate.


POINT II: PLAINTIFFS MOTION FAILS BECAUSE THEY CANT SHOW
LIKELIHOOD OF SUCCESS ON THE MERITS
The Affidavits of Gary Marsh, Stephen Krakowsky, and Jeff Lam are Inadmissible
As an evidentiary matter, the affidavits submitted by Gary Marsh, Jeff Lam, Stephen Krakowsky
are inadmissible as they are out-of-state affidavits not accompanied by certificates of conformity.
CPLR 2309(c) states:
An oath or affirmation taken without the state shall be treated as if taken within
the state if it is accompanied by such certificate or certificates as would be
required to entitle a deed acknowledged without the state to be recorded within
the state if such deed had been acknowledged before the officer who administered
the oath or affirmation.
The statute for the recordation of a deed in New York is RPL 299-A, which dictates that such
documents sworn outside the State require a certificate of conformity showing that such a
deposition was done in conformity with that states law. NY RPL 299-A (2014). Since the
affidavits of Mr. Marsh, Mr. Krakowsky, and Mr. Lam were sworn in front of California notaries
but were not submitted along with certificates of conformity, said affidavits are not admissible
per the directive of CPLR 2309(c). It is respectfully submitted that plaintiffs should not be
permitted to correct this issue nunc pro tunc.

Assuming arguendo that all of the evidence presented by plaintiff is in admissible form,
Plaintiffs are unable to meet their burden that they are likely to succeed on the merits of any of
the causes of action which they allege, as explained in detail below.

Tortious Interference with Contract


In order to establish a cause of action for tortious interference with contract, plaintiff must show:
(1) the existence of a valid contract between plaintiff and a third-party; (2) defendants'
knowledge of that contract; (3) defendants' intentional procuring of the breach of that contract;
and (4) damages. See Click Model Mgt. v Williams, 167 AD2d 279, 280, 561 NYS2d 781 (1990),
viii

lv denied 77 NY2d 805, 571 NE2d 83, 568 NYS2d 913 (1991). Additionally, plaintiff must show
that the subject contract would not have been breached "but for" the defendant's conduct. See
Washington Ave. Assoc. v Euclid Equip., 229 AD2d 486, 487, 645 NYS2d 511 (1996).

Plaintiff does not establish likelihood of success on the merits since the complaint itself does not
allege that, but for the defendants alleged conduct, Redwood Entertainment and G&G would
not have breached their confidentiality agreements with plaintiff. In fact, the affidavits of Janet
Castiel and Angela Gulizio establish that, on their own volition, without any interfering conduct
by defendants, these companies had already breached their confidentiality agreements.
Plaintiffs contract for service was executed by Janet Castiel for Redwood on January 4, 2012.
See Castiel Affidavit 8. G&G was already under contract with plaintiff at the time defendants
began working with Ms. Gulizio. See Gulizio Affidavit 10. The terms of the confidentiality
agreement were the same for both, as seen in their attached exhibits, yet they conspicuously offer
the text of provisions (a) to (d) in their affidavits, leaving provision (e) absent. This provision
reads as follows, found throughout plaintiffs exhibits:
(e) Client agrees to create an internal program among all of its employees,
representatives and agent for the purpose of establishing and maintaining the
confidentiality of said breakdowns(1) This program shall include setting
forth the name of the individual to whom said breakdowns shall be delivered
(hereinafter referred to as the Designated Agent)(2) This program shall also
include Clients preparation of a written letter which Client shall have signed
and dated by the recipient of any script analysis or Breakdown. (GM Aff. Exhibit
4, Part 4, Sec. (e))
This written letter is supposed to contain the other confidentiality provisions of the contracts with
Redwood and G&G, and to hold the signee to those provisions and to keep them from sharing
access information or other important information they may possess. There is no indication that
Redwood or G&G at any time had any such program, or that any but the most insignificant step
towards fulfilling this provision was taken by either entity. Moreover, the affidavits of Frank
Moran and Louise Yanofsky clearly establish that they were not in privity of any confidentiality
agreement with Redwood and G&G while they were given carte blanche access and authority to
build their respective businesses.

ix

In the case of G&G, Angela Gulizio waited over one year to ask Ms. Yanofsky and her
associates to sign a confidentiality agreement. Moreover, one of the e-mail exchanges submitted
as part of Ms. Gulizios affidavits shows that she clearly understood that actors were receiving
access to breakdowns. Despite having clear knowledge that Breakdown Services prohibits actors
from obtaining access to breakdowns, her response to this was that of someone unconcerned:
Awesome. Thank you. See Gulizio Affidavit Exhbit 9. Accordingly, Redwood and G&G
were both substantially in breach of their contracts with plaintiff from the moment they allowed
anyone access to the Breakdown Services website without having them sign a written agreement
of confidentiality. This would have occurred regardless of defendants alleged conduct and, as
such, it is clear that plaintiff fails to prove this essential element of the cause of action for
tortuous interference.

Plaintiff has failed to show that but for the defendants conduct G&G Talent and Redwood
Entertainment would have been in compliance with the confidentiality agreements between them
and Breakdown Services. Not only that, but plaintiff failed to even allege this crucial element of
the cause of action in their Complaint. Accordingly plaintiffs Complaint, with respect to this
cause of action, should be dismissed pursuant to CPLR 3211(a)(7); and so plaintiff cannot
possibly show a likelihood of success on the merits on this.

Unfair Competition
Plaintiffs claim of unfair competition is unfounded, as the actual nature of their breakdowns
does not qualify as anything meriting trade secret protection, nor does it qualify as something
that deserves the title of proprietary information.

To plead an unfair competition claim, Plaintiffs must allege the bad faith misappropriation of a
commercial advantage which belonged exclusively (emphasis added) to them. Ahead Realty,
LLC v. India House, Inc., 92 A.D.3d 424, 425, 938 N.Y.S.2d 17 (1st Dep't 2012), The State of
New York has long recognized two theories of unfair competition: palming off and
misappropriation. ITC Limited v Punchgini, 9 N.Y.3d 467; 880 N.E.2d 852; 850 (2007). Palming
off has been defined by the Court of Appeals as the sale of the goods of one manufacturer as

those of another. Electrolux Corp. v Val-Worth, Inc., 6 NY2d 556, 567-568, 161 NE2d 197, 190
NYS2d 977 (1959).

Misappropriation is largely concerned with trade secrets. The Court of Appeals has defined a
trade secret as "any formula, pattern, device or compilation of information which is used in one's
business, and which gives him an opportunity to obtain an advantage over competitors who do
not know or use it." Ashland Mgmt. v. Janien, 82 N.Y.2d 395, 407, 624 N.E.2d 1007, 604
N.Y.S.2d 912 (1993). New York Courts have also recognized a common law cause of action for
things that do not fall within the bounds of trade secret per se, but are exclusively in the
possession of plaintiff and would cause plaintiff to lose a distinct business advantage if
disclosure of the same were to occur (such as customer lists).

Breakdowns, by their very nature, are neither trade secrets nor proprietary information under
the law, by sheer virtue of the fact that they are disclosed to thousands of people each and every
day. Moreover, any commercial value which breakdowns possess would be entirely nullified if
they were not so widely disclosed. Breakdowns only have value to the extent that a casting
director would use them to cast actors for a role and to the extent that talent agents or managers
are willing to pay to use them so that they can obtain employment for their clients.

To the extent that anything Breakdown Services possesses could be considered proprietary
information, they might argue that the process by which they analyze scripts to compose
breakdowns together is protectable. Obviously, these processes are not placed in jeopardy by
actors obtaining breakdowns, since thousands of people are given access to these breakdowns
daily. Thus, any alleged dissemination of these breakdowns to third parties couldnt possibly
qualify as unfair competition.

Based on the foregoing, it is clear that plaintiffs complaint, motion papers, and accompanying
affidavits do not cognize a proper cause of action for unfair competition. As a result, plaintiff has
not established a likelihood of success on the merits for this cause of action.

xi

General Business Law 349


Plaintiff is unable to establish a likelihood of success on the merits with respect to their
allegations that plaintiffs have violated General Business Law 349. The essence of General
Business Law 349 is to protect consumers from deceptive acts or practices in the conduct of
any business, trade, or commerce or in the furnishing of any service in the state. NY General
Business Law 349 (2014).

Plaintiffs motion papers imply that defendants alleged sale or distribution of breakdowns is a
deceptive business practice, yet does not provide any tangible evidence to show that these
breakdowns allegedly provided by defendants to actors were a) somehow faulty or; b) fail to
correspond to actual acting roles to which actors can apply. As stated in the affidavits of both
Frank Moran and Louise Yanofsky, all actors who obtain breakdowns from third-party sources
understand that these breakdowns come from Breakdown Services, because only the roles on the
Breakdowns Express database correspond to profitable jobs. If false breakdowns were
provided, then plaintiffs argument that defendants were deceiving actors into buying faulty
breakdowns might be valid. Much to the contrary, however, plaintiffs entire motion seems to
imply that the breakdowns allegedly distributed to actors by defendants do come from their
database. Otherwise, there would be no request for an injunction relative to accessing the
Breakdowns Express site specifically.

POINT III: PLAINTIFFS FAIL TO MEET THEIR BURDEN TO SHOW


IRREPARABLE HARM
Irreparable injury has been held to mean an injury for which monetary damages are insufficient.
See James v. Gottlieb, 85 A.D.2d 572 (1st Dept 1981); Klein, Wagner & Morris v. Klein, 186
A.D.2d 631, 633 (2nd Dept 1992). When the relief sought is essentially monetary relief, they
cannot establish irreparable harm as a matter of law. See J.O.M. Corp' v. Department of Health,
173 A.D,2d 153,154 (1st Dep't 1991). "Irreparable harm is the single most important prerequisite
for the issuance of a preliminary injunction." GFI Sec. LLC v. Tadition Asiel Sec. Inc, 873
N.Y.S.2d 51 (Sup. Ct., N.Y County, 2008).

xii

Plaintiff alleges that it will suffer irreparable harm in the event that Breakdown Services does not
obtain injunctive relief, because casting directors will lose confidence in plaintiffs ability to
maintain the confidentiality of their breakdowns. The disingenuous nature of this claim reveals
itself when one considers another statement made by Gary Marsh in his affidavit: that actors, and
other undesirables, have been gaining access to breakdowns against his wishes for nearly four
decades.

It is difficult to ignore the fact that Breakdown Services hold on the entertainment industry
tightens with each year, despite the fact that (as explained in the affidavits of Frank Moran and
Louise Yanofsky) parties on every side of the industry except Breakdown Services (i.e., actors,
talent agents, managers, and casting agents) are either: 1) attempting to subvert the Breakdown
Services system; or 2) advocating for a change in the industry. The affidavits even show that
casting agents, the very people whose interests Breakdown Services is allegedly protecting, are
encouraging actors to obtain breakdowns.
Mr. Marsh asserts that preventing direct access by actors is necessary because of concerns from
casting directors about confidentiality and spoilers. Its not clear, however, that actors are more
likely to release spoilers than any agent, and any concern with confidentiality could arise only
after Breakdown Services established the boundaries of their confidence. Mr. Marsh seems to
occupy himself with ensuring there are no other options available in the industry, and yet a trivial
response to his fears would seem to be extending access to the Breakdown Express site to actors;
if it isnt a breach of confidentiality to allow actors direct access to low-paying or student
projects, there should be no breach if actors are directly bound by the confidentiality agreements
signed by those given access to well-paying roles on Breakdowns Express.
Moreover, having actors bind themselves to confidentiality agreements solves the core problem
behind plaintiffs complaint (i.e., that none of these actors are under privity of contract to
maintain confidentiality of any kind). If Breakdown Services were truly concerned about
enforcing confidentiality, the most efficient and most easily enforced protection mechanism
would be to bring actors into the fold and zealously enforce the confidentiality agreements if
actors ever breach them. Such an agreement could stipulate, as many non-disclosure agreements
do, that Breakdown Services would be irreparably harmed in the event of a breach and that the
parties agree that Breakdown Services would be entitled to injunctive relief.

xiii

It is also worth noting that there can be no irreparable harm here, because it is impossible for an
actor to actually subvert the Breakdown Services system. According to the affidavits of Frank
Moran and Louise Yanofsky, the only functional way in which an actor can use the breakdowns
is to tell their agent or talent manager to submit them for the parts outlined in the breakdowns via
a website owned by Breakdown Services. As such, actors obtaining breakdowns from third-party
sources only serves to strengthen the hold Breakdown Services has on the industry because it
reinforces the idea that only through Breakdown Services can an actor find well paid work.

Plaintiffs Complaint additionally subverts plaintiffs claim of irreparable harm, as the ad


damnum clause sets forth the exact amount of monetary damages allegedly suffered by plaintiff.
Plainiff had the option of keeping the ad damnum clause vague, and not pleading a set amount
for its damages; yet the ad damnum clearly sets $250,000 as the amount which plaintiff has
allegedly lost as a result of defendants alleged conduct. By placing a set monetary value on
these damages, even though the language stipulates that the amount is a minimum, plaintiff has
shown that they are capable of calculating with exact precision the amount of each alleged
violation of their stated policy against actors receiving breakdowns. Accordingly, injunctive
relief is patently inappropriate.

Based upon the foregoing, plaintiffs are unable to show that they would suffer irreparable harm if
the requested injunction is not granted. Accordingly, this motion should be denied.

POINT IV: THE BALANCE OF EQUITIES TIPS IN DEFENDANTS FAVOR


The balance of equities in this case does not favor plaintiff. This is because plaintiffs business
model is contrary and detrimental to New York public policy, as it inherently restricts proper
trade in the employment market in the entertainment industry without any legitimate purpose
other than the pecuniary gain of Breakdown Services. Given that, as the affidavits of Frank
Moran and Louise Yanofsky show, Breakdown Services is the only avenue by which an actor
can obtain gainful employment; and given the malicious tactics that plaintiff has habitually
employed over the past four decades to stifle competition in the marketplace, the Breakdown
Services business model is arguably an illegal monopoly in violation of the Donnelly Act.
xiv

As the Court of Appeals has consistently held, we have a "strong public policy in favor of free
competition for New York" (Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY 2d 621
(1968). One of the mechanisms for enforcing that public policy is General Business Law 340
a.k.a. the Donnelly Act, which states in relevant part:
NY General Business Law 340(1). Contracts or agreements for monopoly or in
restraint of trade illegal and void. 1. Every contract, agreement, arrangement
or combination whereby a monopoly in the conduct of any business, trade or
commerce or in the furnishing of any service in this state, is or may be established
or maintained, or whereby competition or the free exercise of any activity in the
conduct of any business, trade or commerce or in the furnishing of any service in
this state is or may be restrained or whereby for the purpose of establishing or
maintaining any such monopoly or unlawfully interfering with the free exercise of
any activity in the conduct of any business, trade or commerce or in the
furnishing of any service in this state any business, trade or commerce or the
furnishing of any service is or may be restrained, is hereby declared to be against
public policy, illegal and void.
The basic facts of Breakdown Services business model are sufficient to demonstrate that they are
in violation of 340 and its provision that unlawfully interfering with the free exercise of any
activity in the conduct of any business or in the furnishing of any service in this state any
business, trade or commerce or the furnishing of any service is or may be restrained, is hereby
declared to be against public policy, illegal and void.

Breakdown Services claims they act as gatekeeper, but in truth they stand at the gate they have
erected between actors, agents, and casting directors. As stated in Louise Yanofskys affidavit,
this stifles the relationship between actors and their agents as well as makes the business so
opaque that it is virtually impossible for an actor to check their agents work or ensure that their
agent is even making a good faith effort on their behalf. Given that Breakdown Services is not
only the only source of these breakdowns, but is also the only mechanism by which an actor can
be submitted for a role, any competition entering the marketplace is artificially quashed. Their
effect has been more insidious than that, however, as Breakdown Services controls access for
agents to their breakdowns, and access to those breakdowns secures professional success; if you
do not follow Breakdown Services paradigm, you cannot find success in the field.

xv

Breakdown Services has developed the power to shape the expectations and fears of talent
agents, personal managers, actors, and even casting directors as the entertainment field entered
the 21st century. They are treated like a public utility in the field, yet they are able to restrict
access as they desire and act freely in their own private business interests to the detriment of any
who attempt to circumvent their arbitrarily selected limitations.

Even if Breakdown Services is not technically in violation of the Donnelly Act, it is clear that
plaintiffs business model is fundamentally unfair and harms a growing segment of New Yorks
population: its acting community.

In the State of New York there are thousands of actors who clamor for a select few parts each
year. Plaintiffs counsel alleges that these actors are consumers, and I am inclined to agree.
Whereas plaintiff believes that these actors are being harmed by defendants, the evidence shows
that the inverse is true: it is Breakdown Services who is actively harming these thousands of
consumers by imposing a monopolistic scheme in which Breakdown Services is the judge, jury,
and executioner for any actor looking to make a living at their chosen craft.

POINT V: IF PLAINTIFF IS GRANTED INJUNCTIVE RELIEF, IT MUST GIVE AN


APPROPRIATE UNDERTAKING
CPLR 6312 requires that, prior to the granting of a preliminary injunction, the plaintiff shall be
required to give an undertaking, in an amount to be fixed by the Court for all damages and costs
that may be sustained by reason of the injunction. The Appellate Division, Second Department,
has consistently held that given the clear and unequivocal mandate of CPLR 6312, there is no
authority which permits the court to grant an injunction to a private party without requiring the
giving of an undertaking. See Ying Fung Moy v. Hohi Umeki, 10 AD3d 604 (2d Dept 2004); see
also Livas v Mitzner, 303 AD2d 381 (2d Dept 2003).

The purpose of an undertaking is to provide a ready source from which the defendant may
recover for damages sustained by reason of a preliminary injunction that is later found to have
been improperly granted. Margolies v Encounter, Inc., 42 NY2d 475, 479 (1977). The amount
xvi

of an undertaking must be rationally related to the amount of potential damages that Defendants
might sustain. See, e.g., Ujueta v. Euro-Quest Corp., 29 AD3d 895 (2d Dept 2006).

Separately from this litigation, Plaintiff has already caused defendants immense harm by
removing them from the Actors Access website, thereby preventing them from receiving any
income in their chosen vocation. Moreover, granting an injunction would effectively prevent
defendants LOUISE YANOFSKY and FRANK MORAN from earning any income as talent
managers. As such, plaintiff should be compelled to give an undertaking in the event that
plaintiff is granted the injunction sought.

POINT VI: GRANTING THIS INJUNCTION WILL SET A NEGATIVE PRECEDENT


It is difficult to ignore the fact that, upon information and belief, this is the first time that
Breakdown Services is attempting to enforce their monopolistic scheme in New York. None of
the evidence presented shows that Breakdown Services business interests are so harmed by
defendants alleged conduct that injunctive relief is warranted. Moreover, it has been plainly
established by the affidavits of Frank Moran and Louise Yanofsky, as well as the factual
evidence presented by plaintiff that Breakdown Services, for its own pecuniary gain under the
guise of protecting others receives a pecuniary benefit at the expense of actors, talent agents, and
the very casting directors that they allegedly serve.
By granting this injunction, this court would perpetuate the image which Breakdown Services
has been trying to solidify in their industry for decades: that these breakdowns are protectable
intellectual property, which is not the case, and, as a result, Breakdown Services is entitled to a
monopoly on the labor market in the entertainment industry.
CONCLUSION
Based upon the foregoing, it is respectfully submitted that plaintiff has failed to show entitlement
to preliminary injunctive relief. Specifically, plaintiff has failed to show irreparable harm,
likelihood of success on the merits, or that the balance of equities tips in their favor. Moreover,
plaintiffs business model is inherently designed to harm thousands of people in the State of New
York by effectively preventing them from obtaining work, which is against public policy, and
plaintiff is attempting to coerce a New York court into enforcing this. For all of these reasons,
xvii

plaintiffs should not be granted the relief requested.


WHEREFORE it is respectfully requested that this Honorable Court enter into an Order denying
the subject application in its entirety or, in the alternative, compelling plaintiffs to give an
undertaking in an amount in the courts discretion for payment of damages suffered by
defendants in the event of a judgment, an award of costs to defendants, and for any other such
relief as this Honorable Court finds just and proper.

Dated: New York, New York


December 10, 2014
LAW OFFICES OF TODD KULKIN, P.C.
BY: ____/S/_____________________
Todd Kulkin, Esq.
Attorney for Defendants
FRANK MORAN, LOUISE
YANOFSKY, AND STEVE RUBIN
60 East 42nd Street, Suite 4600
New York, New York 10017
(212) 485-9884
TO: E-file via NYSCEF
Service via NYSCEF
PHILLIPS NIZER LLP
Attorneys for Plaintiff
666 Fifth Avenue
New York, New York 10103-0084
(212) 977-9700
Working copy to chambers

xviii