SkyX Group Inc v. Foundation for a Smoke Free World

SkyX Group Inc v Foundation for a Smoke Free World

2024 NY Slip Op 34550(U)

December 20, 2024

Supreme Court, New York County

Docket Number: Index No. 656417/2023

Judge: Joel M. Cohen

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

INDEX NO. 656417/2023

NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 12/20/2024

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M

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SKYX GROUP INC, LOFT LABS, LLC, MARTIN INDEX NO. 656417/2023

STEINBAUER

Plaintiffs, MOTION DATE 03/26/2024

-v- MOTION SEQ. NO. 002

FOUNDATION FOR A SMOKE FREE WORLD, PAMELA J

PARIZEK, HEIDI GOLDSTEIN, DECISION + ORDER ON

MOTION

Defendants.

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HON. JOEL M. COHEN:

The following e-filed documents, listed by NYSCEF document number (Motion 002) 21, 22, 23, 24, 25,

26, 27, 28, 29, 33, 36, 37, 38, 39, 40, 41, 42

were read on this motion to DISMISS .

Plaintiffs, SkyX Group (hereafter “SkyX”), Loft Labs LLC, and Martin Steinbauer

(collectively, “Plaintiffs”), allege that Defendants, Foundation for a Smoke-Free World

(hereafter “FSFW”) and two members of FSFW leadership, Pamela J. Parizek and Heidi

Goldstein (together “Foundation Individuals”) (collectively, “Defendants”), (1) misappropriated

and misused SkyX’s confidential and proprietary information and trade secrets, (2) were unjustly

enriched with the trade secrets, (3) committed fraud, (4) breached a fiduciary duty, and (5) that

the Plaintiffs are entitled to preliminary injunctive relief. Defendants move pursuant to CPLR

3211(a)(1) and (7) to dismiss the Amended Complaint. Plaintiffs cross-move for leave to file a

proposed Second Amended Complaint.

For the reasons set forth below, Defendants’ motion is granted, and Plaintiff’s motion is

denied.

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BACKGROUND

SkyX, a Delaware corporation, is a biotechnology and medical device company that is

the sole owner of Loft Labs LLC and does business in New York (NYSCEF 6 [“FAC”] at ¶ 2).

According to the Amended Complaint, SkyX is a leader in the research and development of

environmental and sustainability solutions, resulting in the commercialization of a host of

inventions relating to Electronic Nicotine Delivery System (“ENDS”) products, wholly

independent of the tobacco sector (id.). SkyX and its principal, Martin Steinbauer (hereafter

“Steinbauer”), are alleged to be widely regarded as experts in the field of sustainability and have

been invited to present topics at different institutes and forums, including at the Food Drug and

Law Institute (“FDLI”), the Global Forum on Nicotine (“GFN”), Smither’s ENDS US, and the

Next Generation Nicotine Conference (id. at ¶6; NYSCEF 37 [“Steinbauer Aff”] at ¶¶ 3-4).

FSFW is a Delaware not-for-profit corporation with the stated purpose of “improving

global health by ending smoking in this generation” (FAC at ¶ 3). FSFW funds the Tobacco

Transformation Index (“TTI”), which monitors the activities of tobacco companies (id.).

Plaintiffs allege that on October 20, 2022, after Steinbauer gave a presentation at the

annual FDLI conference, certain FSFW’s representatives—then Co-President Heidi Goldstein

(“Goldstein”) and Chair of the Board of Directors Pamela Parizek (“Parizek”)—approached

Steinbauer and another SkyX principal, Robert Murtfeld (“Murtfeld”), to discuss the

diversification of FSFW funding and to solicit a research proposal on the topic of sustainability

and waste management of Reduced-Risk Products (“RRPs”) (FAC at ¶ 8). Plaintiffs allege that

FSFW solicited SkyX for this proposal as they were interested in the Plaintiffs’ expertise and

were looking to expand into the area (id.).

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According to the Amended Complaint, after the initial solicitation in October 2022,

Parizek invited Plaintiffs to a Christmas party in New York City and a subsequent dinner to

further encourage and build the relationship between the two parties. Parizek emphasized the

expectation to receive a submission (id. at ¶ 9). On December 20, 2022, Plaintiffs submitted their

proposal (hereafter “the December Proposal”) via email to Co-Presidents Goldstein and David

Janazzo (id. at ¶¶ 9-10; NYSCEF 14). Notably, the December Proposal is not marked

“confidential” (NYSCEF 14). Goldstein acknowledged receipt of the December Proposal via

email outlining the acceptance of the proposal as solicited or as responsive to a Request for

Proposals (RFP) that FSFW planned to issue on the topic of electronic waste in early 2023 (FAC

at ¶¶ 9-10).

On February 6, 2023, FSFW issued an RFP (the “February RFP”) which incorporated

language from the December Proposal without any prior agreement from the Plaintiffs to do so

(id. at ¶¶ 11, 17-30). In this February RFP, Defendants stated that the Foundation will work to

ensure that “any materials made public will not disclose protected information” (Steinbauer Aff.

at ¶ 16; NYSCEF 15 at 6). Following this RFP, Defendants assured other organizations that all

proposals would be treated as confidential and would not be shared (Steinbauer Aff. at ¶17).

Plaintiffs allege that while they noticed the inclusion of language from their December Proposal,

they did not complain because they took it as a good sign that the RFP was “tailor made for

SkyX” (id. at ¶ 7).

Plaintiffs again submitted materials on March 10, 2023, as a response to the February

RFP (the “March Proposal”) which fine-tuned the December Proposal and requested

$2,826,311.00 in grant funding (FAC at ¶12). On March 14, 2023, Goldstein responded to the

Plaintiffs’ submission acknowledging receipt (id.).

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Plaintiffs allege that their December and March Proposals contained approaches and

methods that are proprietary to SkyX which have been internally developed over the years using

prior experiences (id. at ¶13). These approaches were not previously publicly available and were

only ever circulated in full to a limited number of SkyX team members (Steinbauer Aff. at ¶¶ 9,

13).

On May 8, 2023, Plaintiffs were informed by Goldstein that they would not be moving

forward with their proposal “in part based on the recommendation of [FSFW’s] independent peer

review panel” (FAC at ¶14-15). The February RFP concluded with the awarding of a grant to

Idwala Research. Plaintiffs allege that Idwala Research is a company that has a close

relationship with TTI (which is funded by the Foundation) and whose principal was an active

participant in the TTI and Foundation matters during the time in which the proposal was initially

solicited from SkyX (id. at ¶¶ 37-38).

Following the submission of their Proposals, Plaintiffs allege that they discovered and

raised concerns to Parizek that FSFW used and continues to use the Plaintiffs’ intellectual

property and methodologies contained in the Proposals without permission. Specifically,

Plaintiffs allege that the documents that are largely based on misappropriated intellectual

property and methodologies developed by Plaintiffs are: (i) the RFP titled “Management of

Waste Materials from Reduced-Risk Products: Issues and Solutions” issued on February 6, 2023;

and (ii) the TTI RRP Supply Chain Landscape Study, Phase 1: Raw Materials, published on May

9, 2023 (the “TTI Report”), of which four more phases are planned to be published (id. at ¶¶ 16,

40-41).

According to the Amended Complaint, after these issues were raised to Parizek,

Defendants removed from FSFW’s website a section dealing with the grant to Idwala Research.

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Parizek also responded to Plaintiffs via email on May 11, 2023 stating that they would “get to

the bottom of this” as soon as possible (id. at ¶¶ 40-41). On May 23, 2023, Plaintiffs informed

Defendants that they had information from a whistleblower within FSFW confirming that the

RFP was a rigged competition as the work stream had been contracted out in May 2022 with the

approval of the TTI report (id. at ¶ 42; Steinbauer Aff. at ¶ 19). Plaintiffs allege that the

whistleblower informed them that FSFW’s then Co-President who has since been terminated,

David Janazzo, instructed TTI to plagiarize Plaintiffs’ proposals after the February RFP process

concluded (FAC at ¶ 42). Plaintiffs allege that the TTI Report produced from this plagiarism was

published in early May 2023, and cited research and interviews starting as early as when the RFP

Process ended (id.).

After Plaintiffs raised their concerns with Defendants, Defendants conducted an

investigation. Specifically, Parizek informed Plaintiffs on May 23, 2023, that “we have an

independent committee of the board responsible for this review and will be supported by outside

counsel.” Ultimately, however, Defendants informed Plaintiffs that they had determined that no

foul play was involved and no findings of plagiarism were made (id. at ¶ 43). Plaintiffs allege

that this conflicts with Parizek’s statement to them in September 2023 that there was a “mess” at

FSFW and the next steps would be to “settle” whereafter Plaintiffs could then reapply for the

relevant grants (id.).

Plaintiffs further allege that Defendants deliberately tried to destroy Plaintiffs’ business

by soliciting SkyX principal Murtfeld to join FSFW as a development director beginning in

January 2023 until he declined in April 2023 when the Plaintiffs’ March Proposal was still

“under review” (id. at ¶ 44). Plaintiffs allege that Defendants never intended to conduct a

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legitimate RFP, but instead only represented so much to Plaintiffs so as to induce Plaintiffs to

turn over their valuable proprietary and confidential information (id. at ¶ 45).

Plaintiff filed the Complaint on December 21, 2023. On February 15, 2024, they filed the

Amended Verified Complaint. The FAC contains five causes of action: (1) unjust enrichment,

(2) fraud, (3) misappropriation of trade secrets, (4) breach of fiduciary duty, and (5) preliminary

injunctive relief. Defendants moved to dismiss the FAC in its entirety, and Plaintiffs cross-

moved for leave to file a Proposed Second Amended Complaint, which largely incorporates the

substance of the Steinbauer Affidavit submitted in opposition to the instant motion.

DISCUSSION

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a claim, the court

must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every

possible favorable inference, and determine only whether the facts as alleged fit within any

cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87 [1994]). “A motion to dismiss

pursuant to CPLR 3211(a)(1) should be granted only where the documentary evidence that forms

the basis of the defense utterly refutes the plaintiff's factual allegations, and conclusively

disposes of the plaintiff's claims as a matter of law” (Nero v Fiore, 165 AD3d 823, 826 [2d Dept

2018]).

Because the core contention in the amended complaint relates to Defendants’ purported

misappropriation of Plaintiffs’ confidential information, the Court will begin with addressing the

sufficiency of those allegations.

I. Misappropriation of Trade Secrets (Third Cause of Action)

To state a claim for misappropriation of trade secrets a plaintiff must demonstrate: (1)

that it possessed a trade secret and (2) that the defendants used that trade secret in a breach of a

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confidential relationship or duty (Schroeder v Pinterest Inc., 133 AD3d 12, 27 [1st Dept 2015],

citing North Atl. Instruments, Inc. v Haber, 188 F3d 38, 43-44 [2d Cir 1999]). A “trade secret” is

“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 (Wiener v Lazard Freres & Co., 241 AD2d 114, 123 [1st Dept 1998]). In deciding a plaintiff’s

trade secret claim, courts will consider:

(1) the extent to which the information is known outside of [the] business; (2) the

extent to which it is known by employees and others involved in [the] business,

(3) the extent of measures taken by [the business] to guard the secrecy of the

information; (4) the value of the information to [the business] and [its]

competitors; (5) the amount of effort or money expended by [the business] in

developing the information; (6) the ease or difficulty with which the information

could be properly acquired or duplicated by others

(Ashland Mgt. v Janien, 82 NY2d 395, 407 [internal quotation marks and citations omitted]).

What these considerations demonstrate is that a trade secret must first of all be secret (id.).

Whether information is secret is generally a question of fact (see id. [affirming motion to dismiss

claim for trade secret misappropriation in view of the ease with which others could acquire and

duplicate the information]).

Here, affording the complaint a liberal construction (see Leon, 84 NY2d at 87), Plaintiffs

fail to allege a viable cause of action for misappropriation of trade secrets primarily because they

fail to allege that they had any “trade secrets.” While Plaintiffs allege that their proposals were

developed internally and based on personal experience and not publicly available data, they fail

to sufficiently allege that there were proper measures taken to ensure the information was kept

secret (NYSCEF 38 at ¶ 3; FAC at ¶ 13). While Plaintiffs allege that they took steps to maintain

confidentiality within SkyX by limiting access to the full proposals and requiring contractors to

sign Non-Disclosure Agreements (“NDAs”), they failed to keep the “approaches and

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methodologies” secret when they emailed the December Proposal to FSFW without any

protections or confidentiality markings (Steinbauer Aff. at ¶ 9; NYSCEF 29 at 4; see generally

Edelman v Starwood Capital Group, LLC, 70 AD3d 246, 249 [1st Dept 2009] [finding that a

misappropriation of proprietary information fell short because plaintiffs did not allege that there

was sufficient precautionary measure taken to ensure the information remained secret, there was

no written confidentiality agreements, and an oral assurance of confidentiality was

unenforceable]). In voluntarily emailing the December Proposal without any confidentiality or

security measures, the Plaintiffs released their “methods and approaches” in the Proposals from

any trade secret protection (see generally Schroeder, 133 AD2d at 28 [finding that disclosing a

trade secret to others who have no obligation to protect the confidentiality defeats any claim that

the information is a trade secret]). This surrendering of trade secret protection would then also

encompass the purported trade secrets within the February Proposal as it was just a “fine-tuning”

of the December Proposal (FAC at ¶ 12; NYSCEF 16; NYSCEF 14).

Second, Plaintiffs insufficiently allege the “trade secrets” with the requisite specificity to

make a misappropriation claim. To survive a motion to dismiss a misappropriation of trade secret

claim, the plaintiff must put forth specific allegations as to the information owned and its value

(Elsevier Inc. v Doctor Evidence, LLC, 2018 WL 557906, at *4 [SDNY Jan 23, 2018]). While it

is not necessary to disclose every detail, the allegations should do more than simply generally list

categories of information (id. at 6).

Here, the Amended Complaint alludes to approaches and methodologies that are

“proprietary”, “internally developed”, and “informed by previous experience.” (FAC at ¶¶ 13,

58). The accompanying Steinbauer Affidavit further alleges that the Proposals in their entirety

constitute trade secrets as they “outline exact steps, studies and insights” and breaks down the

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Proposals into a list of topics (Steinbauer Aff. at ¶13). Absent from the pleading, though, is a

sufficient description of the methods or approaches that would elevate it to the standard of trade

secret.

The reference to approaches and methodologies to develop a “scientific knowledge base”

on the topics of manufacturing, collection of electronic waste, and invention in the area of

sustainability in the Amended Complaint is not sufficient to state a claim for misappropriation of

trade secrets (see Sapir v Rosen, 2021 WL 4482277 [SDNY Sept 30 2021] [finding that

invocation of proprietary methods and formulas is insufficient without explanation of how those

methods function or the purpose for which they are used]). The Steinbauer Affidavit does not

materially add substance to the pleading as it mainly just breaks down some of what is contained

in the Proposals into differing categories (see Elsevier, 2018 WL 557906 [finding that although

the complaint specifically identified tools and methods alleged as trade secrets, the claim failed

to do more than list general categories of information and could not survive a motion to

dismiss]). In any event, it is the Proposals (not the supplementation in the affidavit) that contain

the purported trade secrets sent to Defendants.

Plaintiffs allege that knowledge base would be “achieved by gathering metrics across not

only industry technologies and geographies, but also in relation and comparison to traditional

combustibles, and then distilling these topics into actionable policy solutions” (FAC ¶13).

Critically, however, the “gathering” and “distilling” has not been done, but rather is contingent

upon someone taking action in the future, which may or may not lead to solutions in the

sustainability space and/or products. Even assuming for purposes of this motion that the

research plan—in the form contained in the Proposals—is creative or provocative, it does not

rise to the level of a trade secret (see Forest Labs., Inc. v Lowey, 218 USPQ 646 [Sup Ct,

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Westchester County 1982], affd, 106 AD2d 368 [2d Dept 1984] [“[U]ndeveloped ideas and plans

concerning future improvements in the [plaintiff’s] process are not protectable as trade secrets”];

TNS Media Research, LLC v TRA Glob., Inc., 977 F Supp 2d 281, 315 [SDNY 2013]

[“[I]nformation consisting simply of business possibilities or goals is not a trade secret.”]).

And while Plaintiffs’ expert focuses on the novelty and potential impact of the Proposals,

asserting that the “approach delineated [in the Proposals] would be a first study of its kind,” that

“Plaintiffs’ Proposals represent a critical missing piece in the research landscape in the ENDS

industry” (NYSCEF 38 [“McAuley Aff.”] ¶¶ 4, 8), novelty or potential significance to future

development by others, on their own, are not sufficient to state a trade secret claim.

Accordingly, taking Plaintiffs’ factual allegations as true, the Court concludes that

Plaintiffs have failed to state a viable cause of action for misappropriation of trade secrets.

II. Fraud (Second Cause of Action)

To state a claim for fraud a plaintiff must allege (1) misrepresentation or material

omission of fact which was false, (2) knowledge of falsity, (3) made for the purpose of inducing

reliance, (4) justifiable reliance, and (5) damages (Mandarin Trading Ltd. v Wildenstein, 16

NY3d 173, 178 [2011]). In a fraud action, the circumstances constituting the wrong shall be

stated in detail (CPLR § 3016).

Here, Plaintiffs have failed to sufficiently plead a fraud claim. The claim rests on

allegations that Defendants “led Plaintiffs to believe that they were competing in a genuine RFP”

and told Plaintiffs they were “in the running to secure a significant grant,” but “[u]pon

information and belief, Defendants never intended to conduct a legitimate RFP, but instead, only

represented so much to Plaintiffs so as to induce Plaintiffs to turn over their valuable proprietary

and confidential information” (FAC at ¶¶53-55). Their allegations in support of this theory are

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that (i) Defendants already contracted out the work covered by the RFP to Euromonitor in May

2022 (id. at 10); and (ii) needed Plaintiffs’ trade secrets to “forward the sustainability mandate of

the [] Foundation.” (NYSCEF 41, Opp. at 9.)

First, allegations made on information and belief are a weak—and often legally

“insufficient” —basis for asserting a fraud claim with the requisite specificity (Cimen v HQ

Capital Real Estate L.P., 227 AD3d 587, 588 [1st Dept 2024]). Second, representations of

future intent are “non-actionable” where there are “no allegation[s] that would support an

inference that the representations were made with a present intention that they would not be

carried out” (Papp v Debbane, 16 AD3d 128 [1st Dept 2005]). Plaintiffs’ fraud claim assumes

that Defendants knew in advance that Plaintiffs’ ultimate proposal would contain valuable trade

secrets worth misappropriating (which, as noted above, they did not), yet plead no facts to

support this advance knowledge. Even assuming for present purposes that “[t]he workstream

had in fact already been contracted out to [TTI] as of May 2022” (FAC ¶53; Steinbauer Aff. at ¶

19), the RFP process concluded with Defendants’ awarding the grant to another party, Idwala

(which purportedly had a “relationship” with TTI). In these circumstances, Plaintiffs have failed

to plead allegations which, if true, lead to the conclusion that Defendants determined in advance

to preclude Plaintiffs from having an opportunity to receive the grant.

Furthermore, Plaintiffs allege that they did not complain about the February RFP’s

similarities to their December Proposal because they interpreted that to mean that the RFP

process was “tailor-made” for Plaintiffs (Steinbauer Aff ¶7)—suggesting satisfaction with a

biased process as long as it was biased in favor of Plaintiffs. In any event, these events

demonstrated that Defendants were not protecting Plaintiffs’ purportedly confidential

information from disclosure to others through the RFP process. It was only after the grant was

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awarded to a different party that Plaintiff sought to re-characaterize the entire process as

fraudulent.

Plaintiffs have also failed to adequately allege justifiable reliance. To plead reliance, the

plaintiff must allege that they were induced to act or refrain from acting to its own detriment as a

result of the false representation (Ideal Steel Supply Corp. v Anza, 63 AD3d 884, 884 [2d Dept

2009]). Plaintiffs do not identify any particular representations about the process on which they

justifiably relied. Indeed, as noted above, they sent their proposals in initially with no

confidentiality designations and continued with the process without objection after becoming

aware that their ideas were incorporated into an RFP that was distributed to other applicants.

Plaintiffs do not adequately plead that they justifiably relied on any particular representations

about the selection process in making the decision to provide their Proposal to Defendants.

Accordingly, Plaintiffs’ fraud claim is dismissed.

III. Unjust Enrichment (First Cause of Action)

Plaintiffs’ unjust enrichment claim is duplicative of their trade secrets claim and/or fraud

claim because it is based on the same underlying facts and Plaintiffs do not explain how these

claims differ from each other (see Corsello v Verizon N.Y., Inc., 18 NY3d 777, 790 [2012], rearg

denied 19 NY3d 937 [2012] [“An unjust enrichment claim is not available where it simply

duplicates, or replaces, a conventional contract or tort claim”]; 1010Data, Inc. v Firestone

Enterprises, Inc., 2011 WL 11400927 [Sup Ct, NY County 2011] [“The unjust enrichment

counterclaim is duplicative of the breach of contract counterclaim and the claims for

misappropriation of trade secrets”]; Sure, Inc. v Boost Ins. USA, Inc., 2022 NY Slip Op

31523[U], 11 [Sup Ct, NY County 2022][finding that misappropriation claims and unjust

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enrichment claims based on the same facts with no distinction is made by the plaintiff should be

dismissed]. Accordingly, the claim for unjust enrichment is dismissed.

III. Breach of Fiduciary Duty (Fourth Cause of Action)

Defendants’ motion to dismiss the Plaintiffs’ breach of fiduciary duty is granted.

Plaintiffs allege that FSFW owed the Plaintiffs a fiduciary duty after fostering a close-knit

relationship beyond a mere “arm’s length business transaction.” (FAC at ¶¶ 62-63).

To state a claim for breach of fiduciary duty, plaintiff must state with particularity facts

demonstrating that (1) the defendant owed them a fiduciary duty, (2) the defendant committed

misconduct, and (3) they suffered damages caused by that misconduct (NY Mar. & Gen. Ins. Co.

v Wesco Ins. Co., 213 AD3d 461, 462 [1st Dept 2023]). To transform an arms-length

conventional business relationship into a fiduciary one, there needs to be a showing of “special

circumstances” such as control of one party by another for the good of the other or creation of an

agency relationship (L. Margarian & Co., Inc. v. Timberland Co., 245 AD2d 69, 70 [1st Dept

1997]) or ongoing and extensive conduct between parties (Weiner v Lazard Freres & Co., 241

AD2d 114, 123 [1st Dept 1998]).

Plaintiffs have not sufficiently alleged that the relationship between the parties is

anything more than an arm’s length business relationship. Throughout the Complaint, Plaintiffs

allege that the Defendants “had no experience” and “lacked expertise” (FAC at ¶¶8, 15). These

allegations show that there is no superiority on the side of the Defendants that would have

created a “special circumstance.” Furthermore, unlike in Weiner, Plaintiffs only allege a

relationship wherein there were several arms-length discussions about the submission of a grant

proposal. This relationship is not extensive enough to give rise to a fiduciary duty, and therefore,

the motion to dismiss this claim is granted.

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IV. Preliminary Injunctive Relief (Fifth Cause of Action)

Plaintiffs’ Fifth Cause of Action (preliminary injunctive relief) is dismissed. A

preliminary injunction is a form of relief, not an independent cause of (Men Women N.Y. Model

Mgt., Inc. v. Elite Model Mgt.-New York LLC, 183 AD3d 501, 502 [1st Dept 2020] citing Talking

Capital LLC v Omanoff, 169 AD3d 423, 424 [1st Dept 2019]; 319 Smile Corp. v. Forman Fifth

LLC, 2005 NY Slip Op 30608[U], 1-2 [Sup Ct, NY County 2005] [dismissing a claim for a

preliminary injunction as it was a provisional request for relief not a cause of action]).

VI. Plaintiffs’ Cross-Motion for Leave to File Second Amended Complaint

Plaintiffs’ cross-motion for leave to file the Second Amended Complaint is denied. Here,

the proposed Second Amended Complaint adds information from the Steinbauer Affidavit and

seeks to add two new causes of action: misappropriation of ideas and unfair

competition/misappropriation of skills and expenditures. The Court has considered the

Steinbauer Affidavit in deciding the motion to dismiss, and finds – as noted above – that it does

not remedy the defects in the pleading. Accordingly, an amendment to add those allegations

would be futile. Additionally, the request to add two additional causes of action is denied as

these proposed new claims are duplicative of the claims currently in the complaint.

* * * *

Accordingly, it is

ORDERED that Defendants’ motion to dismiss the operative Amended Complaint is

GRANTED and Plaintiffs’ cross-motion for leave to amend is DENIED; it is further

ORDERED that the parties upload to NYSCEF a copy of the oral argument transcript

upon receipt.

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This constitutes the Decision and Order of the Court. The Clerk is directed to enter

judgment in favor of Defendants in accordance with this decision, with taxable costs, upon

submission by Defendants of a proposed judgment and bill of costs in acceptable form.

12/20/2024

DATE JOEL M. COHEN, J.S.C.

CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

□

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

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CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

656417/2023 SKYX GROUP INC ET AL vs. FOUNDATION FOR A SMOKE FREE WORLD, ET AL Page 15 of 15

Motion No. 002

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