New York County Clerk's Index No. 652669/12 þfefu park $npreme burt APPELLATE DIVISION-FIRST DEPARTMENT BGC PARTNERS, INC. and G&E ACQUISITION COMPANY, LLC, Plaintiffs-Appellants-Cross-Respondents, -Respo-ndents, AVISON YOUNG (CANADA) INC., AVISON YOUNG (USA) INC., and AVISON YOUNG - NEW YORK, LLC, Defendants-Respondents-Cross-Appellants. REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO STRIKE F. THOMAS HECHT MICHAEL S. POPOK TINA B. SOLIS EMILY' EMILY L. MILLIGAN NIXON PEABODY SUZAN JO 70 West Madison Street, Suite 3500 KATELYN M. BEAUDETTE Chicago, Illinois 60602 BGC PARTNERS, INC. (312) 977-4400 110 East 59th Street, 7th Floor fcht@nixonpeabody.com New York, New York 10022 tbsolis@nixonpeabody.com (212) 938-5000 mpopok@cantor.com emilligan@bgcpartners.com suzan.jo@cantor.com katelyn.beaudette@cantor.com Attorneys for Plaintiffs-Appellants-Cross-Respondents REPRODUCED ON RECYCLED PAPER
TABLE OF CONTENTS I. ARGUMENT... ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 1 A. The Court Should Strike Section II of Brief... 1 B. Alternatively, Court Should Permit Plaintiffs to File a Sur-...... 4 II. CONCLUSION... ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 5. 1
TABLE OF AUTHORITIES Page(s) Cases Dannasch v. Bifulco, 184 A.D.2d 415, 585 N.Y.S.2d 360 (1st Dep't 1992)...2 Fiore v. Oakwood Plaza Shopping Ctr., Inc., 164 A.D.2d 737, 565 N.Y.S.2d 799 (1st Dep't 1991)...4 Gastaldi v. Chen, 56 A.D.3d 420, 866 N.Y.S.2d 750 (2d Dep't 2008)...4 In re Harleysville Ins. Co. v. Rosario, 17 A.D.3d 677, 792 N.Y.S.2d 912 (2d Dep't 2005)...4 Sanford v. 27-29 W. 181 St. Assoc., 300 A.D.2d 250 (1st Dep't 2002)...3 USAA Fed. Sav. Bank v. Calvin, 145 A.D.3d 704, 43 N.Y.S.3d 404 (2d Dep't 2016)...2 Watts v. Champion Home Builders Co., 15 A.D.3d 850, 789 N.Y.S.2d 573 (4th Dep't 2005)...2 Rules N.Y.Y. C.P.L.R. 2214(c)...4, 6.. 11
Plaintiffs-Appellants-Cross-Respondents BGC Partners, Inc. ("BGC") and G&E Acquisition Company, LLC ("G&E Acquisition," collectively with BGC, "Plaintiffs" "Plaintiffs") respectfully submit this Memorandum of Law in furr support of ir Motion to Strike Section II of Memorandum of Law in Furr Support of Motion For Reargument ( " Brief" Brief") filed by Defendants Avison Young (Canada) Inc. ("Avison Young" or "AY"), Avison Young (USA) Inc. ("AY-USA"), and Avison Young-New York ("AY-NY," collectively "Defendants" with Avison Young and AY-USA, "Defendants"), or, alternatively, for permission to file a supplemental brief to address new arguments and relief that have been improperly raised by Defendants for first time in ir Brief. L ARGUMENT1 A. The Court Should Strike Section II of Brief The Opposition to Motion to Strike ( "Opposition" "Opposition") filed by Defendants does nothing to refute fact that Defendants impermissibly made new arguments and requested new relief in Section II of ir Brief. In ir Motion for Reargument, Defendants sought only to reargue certain issues with respect to claim for aiding and abetting breach of duty of fidelity. Milligan Affirm., Ex. B (Defendants' Memorandum of Law in Support of Motion 1 Capitalized terms not defined herein shall have meanings assigned to m in Memorandum of Law in Support of ir Motion to Strike, dated February 13, 2018. 120270 v1
for Reargument, at 2-4). Defendants indisputably did not seek to reargue any issue with respect to Plaintiffs trade secret misappropriation claim. Id. In Section II of ir Brief, however, Defendants ask for very first time that Court amend its prior order to dismiss trade secrets claim with prejudice. Milligan Affirm., Ex. D, at 8-11. Contrary to Defendant's characterization, this is not maintaining "status quo" to "clarify that Plaintiffs could not re-plead trade secret claim." Opposition at 4. This is a new request for relief improperly raised for first time in Defendant's Brief and it should be stricken under wellsettled New York law. See e.g., Dannasch v. Bifulco, 184 A.D.2d 415, 417, 585 N.Y.S.2d 360, 362 (1st Dep't 1992); USAA Fed. Sav. Bank v. Calvin, 145 A.D.3d 704, 706, 43 N.Y.S.3d 404, 406 (2d Dep't 2016); Watts v. Champion Home Builders Co., 15 A.D.3d 850, 851, 789 N.Y.S.2d 573, 574 (4th Dep't 2005). If Defendants wanted some form of relief with respect to trade secrets claim, it was incumbent on m to move for that relief in an actual motion to Court. They have made no such motion and cannot self-help mselves to relief on trade secrets claim for first time in Brief. See id. Defendants attempt to justify ir new arguments and new request for relief on trade secrets claim by referring to a single footnote in opposition brief which merely alerted Court to fact that Plaintiffs have filed a motion for leave to amend ir complaint before trial court. Opposition at 2. The
inclusion of that footnote does not permit Defendants to change very nature of motion y have filed before this Court. Defendants cite no authority that supports ir arguments that a motion made with respect to a single cause of action can be expanded in a reply brief to include an entirely separate cause of action. Indeed, only case Defendants cite in support of ir arguments, Sanford v. 27-29 W. 181 St. Assoc., 300 A.D.2d 250, 251 (1st Dep't 2002), is entirely inapposite. In Sanford, Court found that a reply affidavit that was subject of a motion to strike did not introduce new arguments or grounds for relief. See Sanford, 300 A.D.2d at 251. Rar, affidavit at issue in Sanford merely buttressed facts that had already been provided to Court in an affidavit that had (" been submitted with initial motion papers. See id. ("The cases cited by plaintiffs in support of excluding reply affidavit involve applications in which proponent of summary judgment attempted to remedy a fundamental deficiency in moving papers by submitting evidentiary material with reply. As defendants' motion is supported by affidavit of defendant Auerbach, it suffers from no such inadequacy.") (internal citations omitted). Defendants' arguments in opposition to motion to strike Section II of Brief are devoid of merit and should be rejected.
B. Alternatively, Court Should Permit Plaintiffs to File a Sur- As explained in opening brief, should this Court consider Section II of Brief, Plaintiffs seek leave to file a supplemental brief so that y may respond fully to Defendants' improper attempt to introduce new legal arguments and a new request for relief in ir reply. Absent a supplemental brief, Plaintiffs will be prejudiced by ir inability to respond to matters raised for first time by Defendants in ir reply. N.Y. C.P.L.R. 2214(c); In re Harleysville Ins. Co. v. Rosario, 17 A.D.3d 677, 677-78, 792 N.Y.S.2d 912, 913 (2d Dep't 2005) (noting that sur-reply should have been permitted to address newly raised claims); Gastaldi v. Chen, 56 A.D.3d 420, 420, 866 N.Y.S.2d 750, 751 (2d Dep't 2008) (permitting a sur-reply where new arguments were raised in reply papers); Fiore v. Oakwood Plaza Shopping Ctr.,,Inc., Inc., 164 A.D.2d 737, 737, 565 N.Y.S.2d 799, 799 (1st Dep't 1991) (same).
II. CONCLUSION For foregoing reasons, Plaintiffs respectfully request that Court strike Section II of. To extent Court determines that it will not strike Section II of, Plaintiffs request an opportunity to file a sur-reply. Dated: February 28, 2018 New York, New York sp tfull submitted, Michael S. op k, Deputy Ge er Counsel ' Emily L. an, Assistant en ral Counsel Suzan Jo, Assistant General Counsel Katelyn M. Beaudette, Counsel 59tl' 7th 110 East Street, FlOOr New York, New York 10022 Attorneys for Plaintiffs-Appellants-Cross- Respondents 5