Larner v. Charity Buzz, Inc.
| Decision Date | 09 September 2013 |
| Docket Number | INDEX NO. 153308/13,MOTION SEQ. NO. 001 |
| Citation | 2013 NY Slip Op 32151 |
| Parties | JEREMY K. LARNER, Plaintiff, v. CHARITY BUZZ, INC., COPPY HOLZMAN , THE ART RESERVE, INC. and ELI CONSILVIO, Defendants. |
| Court | New York Supreme Court |
MOTION CAL. NO. ______________
The following papers, numbered 1 to 9 were read on this motion to Dismiss Pursuant to CPLR §3211 and Cross-Motion to Dismiss Pursuant to CPLR §3211 [a],[7], [8] and CPLR S3211[c] :
PAPERS NUMBERED
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits
Answering Affidavits — Exhibits cross motion
Replying Affidavits
Upon a reading of the foregoing cited papers, it is ordered that defendants have met their burden of proof and established a basis to dismiss all causes of action against Eli Consilvio, Art Reserve Inc. and on the cross-motion against Coppy Holzman. Charity Buzz, Inc.'s motion filed under Motion Sequence 002, for an Order dismissing all claims against it, is granted. Plaintiff's motion to amend the complaint filed under Motion Sequence 003, is denied
The Art Reserve Inc. and Eric Consilvio's motion seeks to dismiss this action pursuant to CPLR §3211 [a],[7],[8], for failure to properly state a cause of action and for failure to obtain jurisdiction over them.
Coppy Holzman cross-moves to dismiss this action against him pursuant to CPLR §3211 [a],[7],[8] and CPLR 3211[c ], because plaintiff has not served and filed an affidavit of service. Alternatively, Coppy Holzman claims the complaint fails to state causes of action and there was no direct agreement with the plaintiff resulting in personal liability.
Charity Buzz, Inc.'s motion, filed under Motion Sequence 002, seeks an Order pursuant to CPLR §3211 [a],[7] and CPLR §3211 [c], dismissing this action against it, for failure to state a cause of action.
Plaintiff opposes all of the defendants' motions and under Motion Sequence 003, seeks an Order pursuant to CPLR §3025 [a],[b],[c], amending the complaint to assert additional causes of action for unjust enrichment and for aiding and abetting breach of a fiduciary duty.
Coppy Holzman is chief executive officer and chairman of Charity Buzz, Inc., a Delaware corporation listing its principal place of business as New York. Charity Buzz, Inc. had individuals bid on items to be auctioned off for charity through its website. On February 23, 2011, Charity Buzz Inc. posted an auction to be conducted live, the post read, The proceeds from the auction were to go to Art of Elysium, a Los Angeles, California, based charity. Art of Elysium works with the, "Do Good Dream Big Program," which obtains donations for pediatric wards of hospitals in California. Art of Elysium invited renowned artists to create art for permanent donation to help raise funds.
The website required the acceptance of a User Agreement before any bid was placed. Plaintiff accepted the agreement, placed a bid for $30,000.00, and won the bid for the Shepard Fairey mural. On March 3, 2011, plaintiff wire transferred $30,000.00 to the Charity Buzz Inc. website and received a confirmation of receipt of payment with directions to contact Eli Consilvio. Mr. Consilvio was described in the e-mail as the "point of contact at Art of Elysium for the project."
Plaintiff alleges that he repeatedly contacted Charity Buzz , Inc. and Mr. Consilvio throughout 2011, often with no response. He was subject to a prank call on November 15, 2011, related to Mr. Consilvio, and regarding the mural. On November 21, 2011, plaintiff received an e-mail from Mr. Consilvio which included an apology and was advised that the mural would be executed at the hospital on December 12, 2011. Plaintiff was not present to observe the mural being painted.
In May of 2012, Mr. Consilvio advised plaintiff that the unveiling reception was delayed. On June 6, 2012, plaintiff demanded the return of the $30,000.00 paid at the auction because he was not provided with any part of the item as promised. Plaintiff's demand for the return of $30,000.00 was rejected, and on August 16, 2012, the unveiling ceremony was held at the hospital without him. The inscription on the plaque on the patron wall reads, "Shepard Fairey with a little help from my friends, 2012 - Created through The Art of Elysium's Visual Imagery and Environmental Wellness Program and made possible by a contribution from an anonymous donor." Plaintiff is not seeking to recover the $30,000.00 donated to the charity or from Shepard Fairey. He is only seeking to recover any funds retained by the defendants in relation to the donation
The User Agreement posted on the Charity Buzz Inc. website, specifically states:
It is an established policy that Courts will enforce contractual provisions for choice of law and forum selection in the event of litigation (Boss v. American Exp. Financial Advisors, Inc. 15 A.D. 3d 306, 791 N.Y.S. 2d 12 [N.Y.A.D. 1st Dept., 2005] aff'd 6 N.Y. 3d 242 [2006]).
Plaintiff commenced this action based on the jurisdiction provisions of the User Agreement. Plaintiff has established a basis to obtain jurisdiction in New York over Charity Buzz Inc., and Coppy Holzman pursuant to the User Agreement.
Eli Consilvio and Art Reserve Inc. seek to dismiss this action as against them pursuant to CPLR §3211[a][8], contending that there is no basis to find personal jurisdiction over them. Mr. Consilvio refers to e-mails to establish that he acted as an agent on behalf of Art of Elysium, not Charity Buzz Inc. or Art Reserve. He was not a party to the User Agreement with the plaintiff and claims he is a California domiciliary that acted on behalf of a charity located in California. Art Reserve Inc. was never named as an entity in the e-mails and has nothing to do with the alleged transaction.
Plaintiff opposes the motion contending that Eli Consilvio acted as either an agent, partner, co-conspirator, sub-contractor or fiduciary of Charity Buzz Inc.. Plaintiff also contends that although Art Reserve Inc. is not mentioned in any of the e-mails or included in the agreement, it is the corporate alter-ego of Mr. Consilvio and potentially the means by which he conducts business. There is sufficient purposeful activity to connect both Eli Consilvio and potentially Art Reserve Inc., to this action.
A motion to dismiss pursuant to CPLR §3211[a][8], is based on lack of jurisdiction over the defendant. In opposing a motion to dismiss pursuant to CPLR §3211[a][8], the plaintiff is only required to demonstrate that there are facts that may exist to establish there is personal jurisdiction (Peterson v. Spartan Industries, 33 N.Y. 2d 463, 310 N.E. 2d 513, 354 N.Y.S. 2d 905 [1974] and Comely v. Dynamic HVAC Supply, LLC, 44 A.D. 3d 986, 845 N.Y.S. 2d 797 [N.Y.A.D. 2nd Dept., 2007]).
Pursuant to CPLR §302[a][1], proof of a single transaction taking place in New York, is sufficient to exercise personal jurisdiction over a person, pursuant to CPLR §302[a][1], even if a defendant never enters New York (Deutsche Bank Securities, Inc. v. Montana Bd. of Investments, 7 N.Y. 3d 65, 850 N.E. 2d 1140, 818 N.Y.S. 2d 164 [2006]). In order to establish that an individual is transacting business pursuant to CPLR 302[a][1], there must be some "purposeful activities" in the state and a relationship to the transaction sued upon (SPCA of Upstate New York, Inc. v. American Working Collie Ass'n, 18 N.Y. 3d 400, 963 N.E. 2d 1226, 940 N.Y.S. 2d 525 [2012] citing to, McGowan v. Smith, 52 N.Y. 2d 268, 419 N.E. 2d 321, 437 N.Y.S. 2d 643 [1981]).
Plaintiff has failed to state a basis to sustain jurisdiction over Eli Consilvio, there is no proof that he acted on behalf of Charity Buzz, Inc. as point of contact for Art of Elysium. Eli Consilvio did not transact or conduct purposeful activities in New York in relation to the transaction sued upon, because he provided services solely in California. Plaintiff has failed to state a claim against, and does not have jurisdiction over Art Reserve Inc.. Plaintiff's contentions concerning Art Reserve Inc. are purely speculative and based on conjecture.
A corporate officer or director is personally liable only where his actions are taken for personal reasons and not to benefit the corporation's interests (Hoag v. Chancellor, Inc., 246 A.D. 2d 224, 677 N.Y.S. 2d 531 [N.Y.A.D. 1st Dept., 1998]). A cause of action seeking to hold a corporate officer personally liable, requires particularized allegations of the corporate officer's motivation for personal gain or the manner in which he acted outside the scope of employment (Petkanas v. Kooyman, 303 A.D. 2d 303, 759 N.Y.S. 2d1 [N.Y.A.D. 1st Dept., 2003]).
Coppy Holzman's cross-motion seeks dismissal in part because plaintiff has not served and filed an affidavit of service. Alternatively, Mr. Holzman claims that he did not directly enter into any agreement with the plaintiff...
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