Grimaldi v. Guinn

• Decision Date: 09 February 2010
• Citation: Grimaldi v. Guinn, 72 AD3d 37, 895 N.Y.S.2d 156 (N.Y. App. Div. 2010)
• Parties: MARK A. GRIMALDI, Respondent,<BR>v.<BR>WAYNE D. GUINN, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

72 A.D.3d 37

895 N.Y.S.2d 156

MARK A. GRIMALDI, Respondent,

v.WAYNE D. GUINN, Appellant, et al., Defendants.

DICKERSON, J.

02-09-2010

Christopher X. Maher, LLC, Carmel, for appellant.

Corbally, Gartland & Rappleyea, LLP, Poughkeepsie (Allan B. Rappleyea of counsel), for respondent.

MASTRO, J.P., DILLON and COVELLO, JJ., concur.

OPINION OF THE COURT

DICKERSON, J.

The plaintiff, who resides in Poughkeepsie, New York, is the owner of a 1969 Chevrolet Camaro (hereinafter the Camaro).On or about May 5, 2006he purchased a vintage Chevrolet "cross-ram" manifold and carburetor assembly (hereinafter the cross-ram) from Rick's First Generation Camaro, located in Athens, Georgia.The cross-ram was shipped to the plaintiff in New York, along with documentation including a certification by the defendantWayne D. Guinn of Guinn's Engineering, located in Three Bridges, New Jersey, to the effect that the cross-ram was authentic.In particular, the certification recited: "I certify that the information assigned to [the cross-ram] is precise and accurate . . . This report was . . . prepared expressly for Mark Grimaldi."

After receiving the cross-ram, the plaintiff decided to have it installed in the Camaro, and contacted Guinn concerning this project, explaining to Guinn that he"would like" him to "do the install."According to the plaintiff, Guinn expressed interest in being involved in the project.

The Complaint

In his complaint, the plaintiff claimed that, beginning in the fall of 2005, he had a series of communications with Guinn about the Camaro and the work he wanted performed.The plaintiff alleged that he communicated with Guinn through numerous telephone calls, faxes, and e-mails, he viewed Guinn's Web site, and received a copy of Guinn's book, Camaro Untold Secrets 1967-1969, mailed to him in New York with a personal inscription to him, stating "[l]et[']s get together and do it the right way."According to the complaint, Guinn represented on several occasions that he could install the cross-ram and rebuild the engine.

The plaintiff alleged that, in reliance on Guinn's promises concerning his ability to perform the work and the estimated cost of the project, he delivered the Camaro and the cross-ram to Guinn in September 2006 at the shop of the defendantRichard Pasqualone, also known as Rich Pasqualone, doing business as Cornerstone Automotive (hereinafter Cornerstone), in Pennsylvania.The plaintiff asserted that, once there, he learned that the defendantAllen Tischler, doing business as Tischler Competitive Engines (hereinafter Tischler), of New Jersey, would be involved in the project.

Upon delivery of the vehicle, Guinn and Pasqualone published information on their Web sites, stating that the plaintiff's Camaro had been delivered to them.This publication, according to the plaintiff, was disseminated as a "Guinn's Engineering `News Break,'" the purpose of which was to solicit additional business for Guinn.

Some time after delivery of the Camaro and the cross-ram to Pasqualone, and after the plaintiff tendered partial payment, the defendants allegedly began to evade the plaintiff's telephone calls.According to the plaintiff, when they did actually speak to him, they were vague with regard to their progress, an estimated completion date, and the cost.The plaintiff alleged that he was provided with photographs of the progress in January 2007, which revealed that the Camaro was disassembled and not close to completion.

The plaintiff asserted that he attempted to contact the defendants between January and April 2007.According to the complaint, when the defendants did return the plaintiff's calls, they remained evasive and provided vague and unreliable information.The plaintiff alleged that, in April 2007, he received additional photographs.He asserted that while the photographs demonstrated some progress, they also demonstrated poor workmanship and that the vehicle was not close to completion.

As set forth in the complaint, by May 2007the plaintiff had paid the sum of $32,000 to the defendants.The plaintiff asserted that the defendants had originally estimated the cost to be in the sum of $20,000 or less.

The plaintiff alleged that in May 2007the defendants promised that the project would be completed by July 15, 2007, but that it was not completed by that date.The plaintiff further alleged that Guinn promised to provide him with weekly status reports, but that no such reports were ever provided.

In his complaint, the plaintiff alleged that, in November 2007, more than one year after his delivery of the Camaro to Cornerstone, he recovered the Camaro, but that it and the cross-ram remained totally disassembled and not near completion.

The plaintiff claimed that, prior to his delivery of the Camaro to Cornerstone, it was worth approximately $100,000.He asserted that, after proper installation of the cross-ram, it would have been worth approximately $200,000.The plaintiff claimed that after the defendants disassembled the Camaro, and upon his recovery of the still-disassembled vehicle, it was of nominal value and may not be restorable to the condition it was in when delivered to Cornerstone.

In the first cause of action, the plaintiff alleged that the parties had reached an agreement, and that the defendants breached the agreement.The plaintiff claimed that, as a result of the defendants' breach, he sustained damages in an amount not less than $250,000.

In the second cause of action, the plaintiff alleged that the defendants engaged in deceptive and misleading business practices in violation of General Business Law § 349.

In the third cause of action, the plaintiff alleged that the defendants' representations that they would perform the work for the sum of $20,000 and complete it within three months were made to induce him to engage the defendants, and that he relied on these representations.However, according to the plaintiff, the defendants did not intend to honor their promises, their representations were false and known by the defendants to be false when made, and they were made to deceive him.The plaintiff further alleged that he was deceived by these representations, and, as a result of the defendants' fraudulent conduct, he sustained damages in an amount not less than $250,000.

In a purported fourth cause of action, the plaintiff sought to recover punitive damages.

The Motion To Dismiss

After answering the complaint, Guinn and Tischler (hereinafter together the movants) moved pursuant to CPLR 3211 (a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction.They asserted, inter alia, that they never solicited business in the State of New York, directly or indirectly.

Guinn stated, in an affidavit submitted in support of the motion, that the plaintiff initially solicited him by e-mail on October 14, 2005 requesting that Guinn authenticate a particular type of manifold/carburetor for a 1969 Camaro.Guinn believed that the plaintiff was referred to him by Rick's First Generation Camaro of Athens, Georgia, from which the plaintiff had purchased the part.Guinn stated that, prior to receiving that e-mail, he had never solicited any business from the plaintiff or anyone else in New York, directly or indirectly.

Guinn averred that the substance of the restoration work on the plaintiff's Camaro was to be performed by Cornerstone and Tischler.According to Tischler's affidavit, the plaintiff was referred to him by Rick's First Generation Camaro as well.

Guinn stated that his role was to provide documentation as to the restoration of the component parts of the plaintiff's engine.Guinn claimed that he was to consult, provide information, and certify, if appropriate, that the engine and its component parts were original equipment, and, if they were not, what parts of the engine were not original and what alteration work was performed.

Guinn and Tischler appended, to their affidavits, printouts of two e-mails apparently sent from the plaintiff to Guinn on Friday, October 14, 2005.In the first e-mail, sent at 7:04 P.M., the plaintiff stated, "I am buying a vintage cross-ram setup from Rick's First Generation.I would like you guys to authenticate it.How does the process work and how much does i[t] cost?Thank[s].Mark."In the second e-mail, sent at 7:07 P.M., the plaintiff wrote, "Also, [¶] Do you guys install crossrams, cam, lifter etc.?If so, can you give me a ballpark cost.Thanks again.Mark."

Guinn claimed that he never provided goods or services to the plaintiff in New York, never traveled to New York, never maintained a telephone number, e-mail, or fax in New York, and never advertised in New York.Guinn stated that he met the plaintiff on two occasions, once on March 25, 2006, and once on September 23, 2006, both times at Cornerstone in Pennsylvania.Guinn claimed that, if any agreement existed between him and the plaintiff, it was strictly one created by e-mails emanating from his New Jersey office.Tischler similarly claimed that at no time did he contract with the plaintiff in New York, supply any goods or services to the plaintiff in New York, or deliver anything to the plaintiff in New York.

The Plaintiff's Opposition to the Motion

The plaintiff submitted his own affidavit in opposition to the defendants' motion, which repeated many of the allegations contained in the complaint.In addition, he specified that he was referred to Guinn by Kelley Timms at Rick's First Generation Camaro.He also noted that, when he originally received the cross-ram, it came with both a certificate of authenticity from Rick's First Generation Camaro, and an engineering report from Guinn's Engineering that was prepared for him, identifying his home address in Poughkeepsie, New York.

In his affidavit, the plaintiff averred that he first contacted Guinn by calling the telephone number posted on Guinn's Web site on or about Friday October 14, 2005.He stated that he also...