Spektor & Tsirkin, P.C., New York (Vladimir Tsirkin and
Gregory Spektor of counsel), for appellant-respondent.
Offices of Mitchell J. Devack, PLLC, East Meadow (Nicholas P.
Otis of counsel), for respondent-appellant.
Acosta, P.J., Tom, Webber, Gesmer, Singh, JJ.
Supreme Court, New York County (Arlene P. Bluth, J.), entered
July 6, 2016, which, insofar as appealed from as limited by
the briefs, granted plaintiff's motion for summary
judgment dismissing all counterclaims to the extent of
dismissing the first, second, fourth, fifth, sixth, and
seventh counterclaims, and denied the motion as to the third
counterclaim, unanimously modified, on the law, to grant the
motion as to the third counterclaim, and otherwise affirmed,
without costs. The Clerk is directed to enter judgment
a designer and seller of bridal jewelry, hired plaintiff to
manufacture rings based on its designs. Defendant alleges
that plaintiff failed to adequately safeguard the silver
master models it provided, and the rubber molds created from
them, and that, as a result, unauthorized copies of the
models were made and offered for sale on the black market.
first counterclaim (for breach of contract) was properly
dismissed because defendant cannot establish the elements of
either breach or damages (see Harris v Seward Park Hous.
Corp., 79 A.D.3d 425, 426 [1st Dept 2010]). Defendant
does not allege that the contract required plaintiff to
employ any particular security measures. As such, all that
plaintiff was required to do was exercise precautions
consistent with industry standards (cf. Aronette Mfg. Co.
v Capitol Piece Dye Works, 6 N.Y.2d 465, 468 ).
Plaintiff submitted an affidavit from an experienced industry
professional, who opined that the measures it took - i.e.,
keeping the molds in a locked storage room supervised by an
onsite employee - were "standard in the industry."
The affidavit submitted by defendant in opposition did not
set forth any different standard, and therefore failed to
raise an issue of fact.
damages, defendant's representative admitted that he was
"not aware of any particular instances of sales of
jewelry pieces manufactured from the counterfeit
models." Defendant's theory of damages that the
jewelry styles corresponding to the counterfeited models
failed to meet projected sales is unduly speculative (see
Lexington 360 Assoc. v First Union Natl. Bank of N.
Carolina, 234 A.D.2d 187, 190 [1st Dept 1996]).
second counterclaim (for negligence) was properly dismissed
as duplicative of the breach of contract counterclaim, as it
"failed to allege a duty independent of the
contract" (see Von Sengbusch v Les Bateaux De N.Y.,
Inc., 128 A.D.3d 409, 410 [1st Dept 2015]).
third counterclaim (for breach of the implied covenant of
good faith and fair dealing) should similarly have been
dismissed as redundant, as it was "intrinsically tied to
the damages allegedly resulting from a breach of the
contract" (Bostany v Trump Org. LLC, 73 A.D.3d
479, 481 [1st Dept 2010]).
fourth counterclaim (for breach of fiduciary duty) was
properly dismissed because defendant cannot establish the
existence of any relationship giving rise to a fiduciary duty
(see Burry v Madison Park Owner LLC, 84 A.D.3d 699,
699-700 [1st Dept 2011]). "[A]n arms-length business
relationship does not give rise to a fiduciary
obligation" (WIT Holding Corp. v Klein, 282
A.D.2d 527, 529 [2d Dept 2001]; V. Ponte & Sons v
American Fibers Intl., 222 A.D.2d 271, 272 [1st Dept
1995]), and "[w]ithout an agreement providing for a
relationship of trust, or special circumstances indicating
the same, none can be inferred" (Mobil Oil Corp. v
Joshi, 202 A.D.2d 318, 318 [1st Dept 1994]).
fifth counterclaim (for misappropriation of trade secrets)
was properly dismissed because defendant failed to proffer
sufficient evidence to show that the models were trade
secrets (see Ashland Mgt. v Janien, 82 N.Y.2d 395,
407 ). Defendant also failed to allege that plaintiff
misappropriated the models (see Schroeder v Pinterest
Inc., 133 A.D.3d 12, 27 [1st Dept 2015]), alleging
instead that plaintiff failed to adequately safeguard them,
as a result of which they were misappropriated by a third
sixth counterclaim (for unfair competition and trademark
dilution in violation of General Business Law [GBL] §
360-l) was properly dismissed because defendant cannot
demonstrate a "[l]ikelihood of injury to business
reputation or of dilution of the distinctive quality" of
defendant's trademarks (GBL § 360-l; Allied
Maintenance Corp. v Allied Mech. Trades, 42 N.Y.2d 538,
545  [emphasis omitted]). Defendant also failed to
allege the requisite "bad-faith misappropriation of a
commercial advantage" to prevail on an unfair
competition claim (Ahead Realty LLC v India House,
Inc., 92 A.D.3d 424, 425 [1st Dept 2012]).
seventh counterclaim (for trademark infringement) was
properly dismissed because defendant failed to allege that
plaintiff made any "use" of its trademarks at all,
let alone an infringing one (see GBL ...