United States District Court, S.D. New York
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Brian K. Condon, Condon & Associates, PLLC, Nanuet, NY, for Plaintiff.
Barry Scott Guaglardi, Jason S. Nunnermacker, Arturi, D'Argenio & Guaglardi, LLP, Rochelle Park, NJ, Benjamin Ostrer, Benjamin Ostrer & Associates P.C., Chester, NY, for Defendants.
MEMORANDUM & ORDER
RAMOS, District Judge.
Plaintiff Dalzell Management Company, Inc. (" Plaintiff" or " Dalzell" ) brings this action alleging a violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C) (the " CFAA" ), and six state law claims arising out of the alleged wrongful eviction of Plaintiff by the Defendants. Defendants move to dismiss the Complaint based on the abstention doctrine of Colorado River Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Docs. 26, 29. For the reasons stated herein, Defendants' motion is DENIED.
Plaintiff is a real estate management company owned by Richard Sena (" Sena" ). Compl. ¶¶ 13-14. Since approximately 1997, Plaintiff's office has been located at 2 Bardonia Mall in Bardonia, New York (the " Premises" ). Id. ¶ 18. The Premises is a commercial office building with various offices and business located therein. Id. ¶ 19. Plaintiff alleges that Defendants Bardonia Plaza, LLC (" Bardonia Plaza" ), Eric Bergstol (" Bergstol" ) and/or Milton Shapiro (" Shapiro" ) own the Premises. Id. ¶ 21.
In or around 1997, Plaintiff's prior owner entered into an oral agreement with Bergstol, whereby Plaintiff would occupy the Premises to operate its property management business and would also provide property management services to Defendants. Id. ¶¶ 25, 27. The parties also agreed that Plaintiff was to be paid five percent of the base rents collected for each property managed as a monthly management fee. Id. ¶ 31.
Plaintiff alleges that it maintained its own computer system where it stored information
concerning all properties managed by Plaintiff, including those not owned and/or operated by Bardonia Plaza, Bergstol and Bergstol Enterprises, Inc. (collectively the " Bergstol Defendants" ), as well as proprietary and confidential information of the Plaintiff, including Plaintiff's banking information. Id. ¶ 37. Additionally, Plaintiff alleges that only Sena had authority to access the server. Id. ¶ 36. The Bergstol Defendants were not authorized to access the server or Plaintiff's files. Id. ¶ 38.
On or about August 1, 2011, Shapiro met with Sena outside the Premises and gave Sena a Notice of Termination of Employment. Id. ¶ 43. When Sena returned to his office, Defendants Bergstol, Dominic Capio (" Capio" ), and Joel Black (" Black" ), and two information technology employees of Bergstol Enterprises, were there and were in the process of copying the files from Plaintiff's computer server. Id. ¶¶ 47-50. At that time, Bergstol also informed Sena that the locks to Plaintiff's office had been changed. Id. ¶ 49. Black next asked Sena to provide him with the password to a specific program used by Plaintiff to maintain records on the various properties it manages, but Sena refused; however, Black still managed to access Plaintiff's computer files. Id. ¶¶ 57-59.
Sena was later advised that he could return to his office on August 4, 2011 to retrieve his files and belongings. Id. ¶ 66. When Sena arrived at the office on the morning of August 4, Capio was present and advised him that he could take the files and belongings that had been placed in boxes. Id. ¶ 67. According to Plaintiff, Capio did not have the authority to touch or box Plaintiff's property. Id. ¶ 69. The police were called, and shortly thereafter, Bergstol arrived at the Premises with two individuals, id. ¶¶ 70-71. With police present, the parties agreed to give Plaintiff's attorney the keys to the Premises. Defendants also agreed that they would not re-enter the Premises or take any of Plaintiff's files. Id. ¶ 72. Sena proceeded to take some of his belongings, including the server and computers, and left the Premises. Id. ¶ 73.
Later that afternoon, Sena returned to the Premises. Id. ¶ 74. According to Plaintiff, Defendants had again called a locksmith who appeared at the Premises to change the locks. Id. ¶ 75. Once again in the presence of the police, the parties agreed that the locks could be changed but the police would take possession of the keys until the matter was resolved. Id. ¶ 78. Plaintiff alleges that the Defendants have destroyed Plaintiff's business and gained unauthorized access to, and stolen, its computer and paper files. Id. ¶ 79.
b. The Federal Action
On August 12, 2011, Plaintiff commenced a federal action in this Court against the seven named Defendants. Doc. 1. Plaintiff's action alleges: (1) a violation of the CFAA; (2) trespass to chattel; (3) trespass to land; (4) conversion; (5) destruction and loss of Plaintiff's business; and as against Bardonia Plaza, Bergstol and Shapiro, (6) wrongful eviction pursuant to New York State Real Property Actions and Proceedings Law (" RPAPL" ) § 853 and (7) failure to provide the requisite notice to terminate a license pursuant to RPAPL § 713. Plaintiff seeks monetary relief, as well as injunctive relief enjoining Defendants from accessing, utilizing or disseminating the information taken from Plaintiff's computer system and seeking the return of the copied files.
To date, the parties have filed Fed.R.Civ.P. 26(a)(1) disclosures, Docs. 19, 23, and appeared twice before this Court. Additionally, according to Plaintiff, the parties have exchanged discovery ...