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FILED: NEW YORK COUNTY CLERK 11/17/2022 02:31 PM INDEX NO. 654390/2022
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 11/17/2022
THOM FILICIA, INC.,
Index No.: 654390/2022
Plaintiff,
AFFIRMATION OF
-against- EMERGENCY
AND GOOD FAITH
KENNETH SMITH GARDNER a/k/a K. SMITH
GARDNER,
Defendant.
RACHEL JOHN, an attorney duly admitted to practice law before the courts of the
State of New York, being mindful of the penalties for perjury, affirms the following to be true:
1. I am an associate with the law firm of Zetlin & De Chiara, LLP, attorneys
for the above-named Plaintiff Thom Filicia, Inc. (“TFI”). I am familiar with the facts and
circumstances in this action.
2. This affirmation is submitted in support of TFI’s Order to Show Cause
seeking a temporary restraining order, preliminary injunction and expedited discovery in this
action.
3. Plaintiff seeks relief on an emergency basis in order to avoid further
irreparable harm in connection with Defendant’s breach of contract, misappropriation of trade
secrets, intentional interference and other wrongful conduct.
4. As set forth more fulling in the Complaint, a copy of which is annexed
hereto as Exhibit 1, and the accompanying Affidavits of Thomas Filicia and Rosalie Catalfamo,
Defendant and TFI executed an Employment Agreement on or about May 12, 2017, which
Employment Agreement is annexed as Exhibit A to the Affidavit of Thomas Filicia. (TF Aff. ¶4.)
5. The Employment Agreement required, inter alia, that Defendant maintain
the confidentiality of TFI’s confidential and proprietary information and documents and that
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Defendant not use the same for any purpose other than on behalf of his employer, in addition to a
limited non-solicitation clause as follows:
Nonsolicitation of Clients. During the Term and for two (2) years thereafter, I shall
not, directly or indirectly, alone or as a consultant, partner, freelancer, independent
contractor or employee of any entity, solicit, accept or do business with any TFI
customer or potential customer whom I had (i) contact with, or (ii) Confidential
Information about, during the Term. Also during the Term and for two (2) years
thereafter, I shall not request any present or future customers or suppliers of TFI to
curtail or cancel their business with TFI. These obligations will continue for the
specified period regardless of whether the termination of my employment was
voluntary or involuntary or with or without cause.
(Employment Agreement ¶2(a).)
6. As discussed in detail in the Memorandum of Law in Support submitted
with this application, this non-solicitation provision is reasonably limited in scope to prohibit
Defendant’s solicitation to only those TFI clients with whom Defendant had direct contact or about
whom Defendant obtained confidential information during the course of his employment.
7. There is no general geographic or other restriction that would prohibit
Defendant from working in the field of interior design generally, in New York or elsewhere, or
from offering his services (and his own work product) to all other persons but those certain clients.
8. Nor was Defendant’s client base particularly broad. As TFI prides itself on
its commitment to individualized service of the highest quality, during his employment with TFI,
Defendant was assigned only to a limited number of clients (approximately five to ten).
9. My office attempted to remedy this situation directly with Defendant, but
was rebuffed with an insincere letter from Defendant’s counsel arguing that Defendant was in full
compliance with his obligations under the non-solicitation clause because the Mezzalinguas were
no longer a client of TFI (this last assertion being made without proof). Defense counsel’s position
would result in the absurd situation of Defendant being in compliance with the Employment
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Agreement even where Defendant acted in direct contravention of the same, so long as Defendant
successfully induced TFI’s clients to terminate their relationship with TFI – the exact harm that
the nonsolicitation clause is reasonably intended to prevent.
10. Defendant’s counsel did not address Defendant’s campaign, which began
prior to the end of his employment and continued thereafter, to negotiate a transfer of the
Mezzalingua account from TFI to himself at TFI’s significant expense, which included attempts
to negotiate a reduction in TFI’s fees owed by the Mezzalinguas to TFI on behalf of the
Mezzalinguas as part of a transfer of the account. (TF Aff. ¶¶ 24-27; RC Aff. ¶¶ 4-11).
11. Defendant’s proposal to gain the Mezzalingua account (Ex. A to the RC
Aff.) is evidence of Defendant’s breach of the Employment Agreement and it is reasonably
inferable from the detail and posture of his proposal to TFI that Defendant discussed this
arrangement previously with the Mezzalingua and was making this proposal as part of negotiations
between himself and the Mezzalinguas to enter into a contract in breach of the Employment
Agreement.
12. Thereafter, TFI and this office engaged in extensive investigation of the
facts and circumstances of this matter, including an extensive review of billing and email records,
which led to the discovery of additional information with respect to Defendant’s solicitation of
TFI’s clients and use of TFI’s vendor accounts (TF Aff. ¶41; RC Aff. ¶19). Some of the materials
obtained as a result of this investigation and collection of documents are annexed to the Affidavits
of Thomas Filicia and Rosalie Catalfamo submitted with this application.
13. These facts were only understood or discovered after this office’s attempt
to resolve this matter through non-judicial means and raise additional and immediate concerns
about Defendant’s access to TFI’s records and accounts. (TF Aff. ¶41; RC Aff. ¶19)
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Expedited Discovery Should Be Permitted
14. Plaintiff also seeks expedited discovery in this matter.
15. Although Plaintiff has been able to ascertain certain facts based on its own
review, Defendant conducted significant business activities via text on his personal device (TF
Aff. ¶¶ 20-23) and was clearly in communication with the Mezzalinguas between the termination
of his employment in March 2022 and the misdirected emails sent to Defendant’s old TFI email
address in July 2022 (Compl. Exs. B, E).
16. Defendant formed a business entity in or around October 2022 and may
further have conducted significant non-TFI business activities while employed by TFI and may,
upon information and belief, have improperly used TFI’s business accounts for his personal gain.
A copy of information from the New York State Department of State Division of Corporations is
annexed hereto as Exhibit 2.
17. As Defendant is solely in possession of such information relating to the
discussions between himself and the Mezzalinguas on his personal devices and email address(es),
which evidence is likely to exist given what TFI has already discovered in its investigation, TFI
seeks to conduct discovery prior to the Court’s hearing of its application for a preliminary
injunction during the pendency of this action.
18. Discovery to be conducted should include, but not be limited to, all written
communications (including texts and emails) and agreements between Defendant and the
Mezzalinguas; all documents in Defendant’s possession relating to work performed by TFI or
Defendant for the Mezzalinguas; copies of any communications, orders, payments and invoices
between Defendant and the TFI vendors identified in Exhibit F to the Complaint; copies of any
proposals, agreements, communications (including texts and emails) and promotional materials
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created, issued or made by Defendant between October 21, 2022, and the end of Defendant’s
employment with TFI in or around March 4, 2022; and a deposition of Defendant.
Notice Given of this Application
19. On November 16, 2022, I called Defendant’s counsel Glen Silverstein to
inform him that this office would be filing the instant Order to Show Cause seeking a temporary
restraining order and preliminary injunction and that, after the filing of such Order to Show Cause,
I would be contacting the Ex Parte Office of this Court at 3pm on November 17, 2022, to schedule
an appearance before the Court.
20. Mr. Silverstein advised that he or another attorney from his office would
participate in my call with the Ex Parte Office and be present at any subsequently scheduled
appearance before this Court at the appointed time to address the application for a temporary
restraining order.
21. I sent a confirmation email to Mr. Silverstein directly after the call, a copy
of which is annexed to this affirmation as Exhibit 3.
22. No prior application for this or any similar relief has been made in this case.
WHEREFORE, I respectfully request that this application be handled on an expedited
basis.
Dated: New York, New York
November 16, 2022
RACHEL JOHN
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FILED: NEW YORK COUNTY CLERK 11/17/2022 02:31 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 11/17/2022 THOM FILICIA, INC., Index No.: 654390/2022 Plaintiff, AFFIRMATION OF -against- EMERGENCY AND GOOD FAITH KENNETH SMITH GARDNER a/k/a K. SMITH GARDNER, Defendant. RACHEL JOHN, an attorney duly admitted to practice law before the courts of the State of New York, being mindful of the penalties for perjury, affirms the following to be true: 1. I am an associate with the law firm of Zetlin & De Chiara, LLP, attorneys for the above-named Plaintiff Thom Filicia, Inc. (“TFI”). I am familiar with the facts and circumstances in this action. 2. This affirmation is submitted in support of TFI’s Order to Show Cause seeking a temporary restraining order, preliminary injunction and expedited discovery in this action. 3. Plaintiff seeks relief on an emergency basis in order to avoid further irreparable harm in connection with Defendant’s breach of contract, misappropriation of trade secrets, intentional interference and other wrongful conduct. 4. As set forth more fulling in the Complaint, a copy of which is annexed hereto as Exhibit 1, and the accompanying Affidavits of Thomas Filicia and Rosalie Catalfamo, Defendant and TFI executed an Employment Agreement on or about May 12, 2017, which Employment Agreement is annexed as Exhibit A to the Affidavit of Thomas Filicia. (TF Aff. ¶4.) 5. The Employment Agreement required, inter alia, that Defendant maintain the confidentiality of TFI’s confidential and proprietary information and documents and that 1 1 of 5 FILED: NEW YORK COUNTY CLERK 11/17/2022 02:31 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 11/17/2022 Defendant not use the same for any purpose other than on behalf of his employer, in addition to a limited non-solicitation clause as follows: Nonsolicitation of Clients. During the Term and for two (2) years thereafter, I shall not, directly or indirectly, alone or as a consultant, partner, freelancer, independent contractor or employee of any entity, solicit, accept or do business with any TFI customer or potential customer whom I had (i) contact with, or (ii) Confidential Information about, during the Term. Also during the Term and for two (2) years thereafter, I shall not request any present or future customers or suppliers of TFI to curtail or cancel their business with TFI. These obligations will continue for the specified period regardless of whether the termination of my employment was voluntary or involuntary or with or without cause. (Employment Agreement ¶2(a).) 6. As discussed in detail in the Memorandum of Law in Support submitted with this application, this non-solicitation provision is reasonably limited in scope to prohibit Defendant’s solicitation to only those TFI clients with whom Defendant had direct contact or about whom Defendant obtained confidential information during the course of his employment. 7. There is no general geographic or other restriction that would prohibit Defendant from working in the field of interior design generally, in New York or elsewhere, or from offering his services (and his own work product) to all other persons but those certain clients. 8. Nor was Defendant’s client base particularly broad. As TFI prides itself on its commitment to individualized service of the highest quality, during his employment with TFI, Defendant was assigned only to a limited number of clients (approximately five to ten). 9. My office attempted to remedy this situation directly with Defendant, but was rebuffed with an insincere letter from Defendant’s counsel arguing that Defendant was in full compliance with his obligations under the non-solicitation clause because the Mezzalinguas were no longer a client of TFI (this last assertion being made without proof). Defense counsel’s position would result in the absurd situation of Defendant being in compliance with the Employment 2 2 of 5 FILED: NEW YORK COUNTY CLERK 11/17/2022 02:31 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 11/17/2022 Agreement even where Defendant acted in direct contravention of the same, so long as Defendant successfully induced TFI’s clients to terminate their relationship with TFI – the exact harm that the nonsolicitation clause is reasonably intended to prevent. 10. Defendant’s counsel did not address Defendant’s campaign, which began prior to the end of his employment and continued thereafter, to negotiate a transfer of the Mezzalingua account from TFI to himself at TFI’s significant expense, which included attempts to negotiate a reduction in TFI’s fees owed by the Mezzalinguas to TFI on behalf of the Mezzalinguas as part of a transfer of the account. (TF Aff. ¶¶ 24-27; RC Aff. ¶¶ 4-11). 11. Defendant’s proposal to gain the Mezzalingua account (Ex. A to the RC Aff.) is evidence of Defendant’s breach of the Employment Agreement and it is reasonably inferable from the detail and posture of his proposal to TFI that Defendant discussed this arrangement previously with the Mezzalingua and was making this proposal as part of negotiations between himself and the Mezzalinguas to enter into a contract in breach of the Employment Agreement. 12. Thereafter, TFI and this office engaged in extensive investigation of the facts and circumstances of this matter, including an extensive review of billing and email records, which led to the discovery of additional information with respect to Defendant’s solicitation of TFI’s clients and use of TFI’s vendor accounts (TF Aff. ¶41; RC Aff. ¶19). Some of the materials obtained as a result of this investigation and collection of documents are annexed to the Affidavits of Thomas Filicia and Rosalie Catalfamo submitted with this application. 13. These facts were only understood or discovered after this office’s attempt to resolve this matter through non-judicial means and raise additional and immediate concerns about Defendant’s access to TFI’s records and accounts. (TF Aff. ¶41; RC Aff. ¶19) 3 3 of 5 FILED: NEW YORK COUNTY CLERK 11/17/2022 02:31 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 11/17/2022 Expedited Discovery Should Be Permitted 14. Plaintiff also seeks expedited discovery in this matter. 15. Although Plaintiff has been able to ascertain certain facts based on its own review, Defendant conducted significant business activities via text on his personal device (TF Aff. ¶¶ 20-23) and was clearly in communication with the Mezzalinguas between the termination of his employment in March 2022 and the misdirected emails sent to Defendant’s old TFI email address in July 2022 (Compl. Exs. B, E). 16. Defendant formed a business entity in or around October 2022 and may further have conducted significant non-TFI business activities while employed by TFI and may, upon information and belief, have improperly used TFI’s business accounts for his personal gain. A copy of information from the New York State Department of State Division of Corporations is annexed hereto as Exhibit 2. 17. As Defendant is solely in possession of such information relating to the discussions between himself and the Mezzalinguas on his personal devices and email address(es), which evidence is likely to exist given what TFI has already discovered in its investigation, TFI seeks to conduct discovery prior to the Court’s hearing of its application for a preliminary injunction during the pendency of this action. 18. Discovery to be conducted should include, but not be limited to, all written communications (including texts and emails) and agreements between Defendant and the Mezzalinguas; all documents in Defendant’s possession relating to work performed by TFI or Defendant for the Mezzalinguas; copies of any communications, orders, payments and invoices between Defendant and the TFI vendors identified in Exhibit F to the Complaint; copies of any proposals, agreements, communications (including texts and emails) and promotional materials 4 4 of 5 FILED: NEW YORK COUNTY CLERK 11/17/2022 02:31 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 11/17/2022 created, issued or made by Defendant between October 21, 2022, and the end of Defendant’s employment with TFI in or around March 4, 2022; and a deposition of Defendant. Notice Given of this Application 19. On November 16, 2022, I called Defendant’s counsel Glen Silverstein to inform him that this office would be filing the instant Order to Show Cause seeking a temporary restraining order and preliminary injunction and that, after the filing of such Order to Show Cause, I would be contacting the Ex Parte Office of this Court at 3pm on November 17, 2022, to schedule an appearance before the Court. 20. Mr. Silverstein advised that he or another attorney from his office would participate in my call with the Ex Parte Office and be present at any subsequently scheduled appearance before this Court at the appointed time to address the application for a temporary restraining order. 21. I sent a confirmation email to Mr. Silverstein directly after the call, a copy of which is annexed to this affirmation as Exhibit 3. 22. No prior application for this or any similar relief has been made in this case. WHEREFORE, I respectfully request that this application be handled on an expedited basis. Dated: New York, New York November 16, 2022 RACHEL JOHN 5 5 of 5