Opinion
Index No. 722461/2022 Motion Seq. Nos. 2 3
06-05-2023
ANTIELLIA STERLING, Plaintiff, v. SIXT RENT-A-CAR, LLC and THE GLEANER COMPANY (USA) LTD., Defendants.
Unpublished Opinion
Motion Date: 04/13/2023
Present: HONORABLE KARINA E. ALOMAR JUSTICE
Karina E. Alomar Judge:
The following numbered papers read on this motion by defendant The Gleaner Company (USA) LTD for an order pursuant to CPLR §3211 dismissing the complaint in favor of defendant The Gleaner Company (USA) LTD ("GUSA") and granting GUSA its costs and attorneys' fees pursuant to Civil Rights Law §70-a; and defendant Sixt Rent-A-Car LLC's motion for an order pursuant to CPLR §3211 dismissing the complaint in favor of defendant Sixt Rent-A-Car LLC ("Sixt") and granting Sixt its costs and attorneys' fees pursuant to Civil Rights Law §70-a
PAPERS NUMBERED
Notice of Motion, Affidavit, Exhibits.................. 9
Notice of Motion, Affidavit, Exhibits.................. 19 - 26
Affirmation in Opposition, Exhibits.................... 33
Affirmation in Opposition, Exhibits.................... 42
Affirmation in Reply, Exhibits........................... 49
Affirmation in Reply, Exhibits........................... 55
'Upon the foregoing cited papers, it is ordered that defendant GUSA's motion pursuant to CPLR §3211(a)(1), 3211(a)(7), 3211(g) and/or Civil Rights Law §70-a and Sixth Rent-A-Car, LLC's motion for the same relief is decided as follows:
Plaintiff commenced the instant action on October 25, 2022, asserting defamation; defamation per se; defamation by implication; negligence; assault; negligent infliction of emotional distress (hereinafter NIED); and intentional infliction of emotional distress (hereinafter IIED) arising from false statements allegedly published and republished by the defendants and others via spoken word and in writing. Defendant Sixt Rent-A-Car LLC is a domestic limited liability company organized under the laws of the State of Delaware, and which maintains its principal place of business in Fort Lauderdale, Florida. It is further alleged that Sixt Rent-A-Car LLC is a subsidiary of Sixt Transatlantic GmbH. Defendant GUSA is a domestic corporation and a subsidiary of The Gleaner Company (Media) Ltd.
It is alleged that prior to travelling to the country of Jamaica, plaintiff rented a car from defendant Sixt Rent-A-Car LLC ("Sixt") on November 7, 2021. Plaintiff was originally due to return the car on November 16, 2021. Plaintiff alleges that she requested and was granted three extensions for the return of the car. Namely from November 16, 2021, to November 27, 2021; then from November 27, 2021, to December 5, 2021; from December 5, 2021, to December 15, 2021; and finally, from December 15, 2021, to December 24, 2021. Defendant dispute plaintiff's claims and state that the final extension of December 15, 2021 to December 24, 2021 was denied as evidenced by a return to branch letter dated December 16, 2021.
What is not in dispute is that on December 23, 2021, non-party The Gleaner Company (Media) Ltd. ("GCM") published a video on YouTube titled "The Gleaner Minute." The subject video stated that
forty days after an American woman rented a 2017 Toyota Carolla from Sixt Rent-A-Car at Sangster International Airport. She seems to have disappeared and the vehicle is nowhere to be found. Antiellia M. Sterling [plaintiff], who tendered a New York State Driver's License and Visa credit card to the rental agency was scheduled to return the car on November 15th.
Moreover, on December 23, 2021, non-party GCM published plaintiff's photograph and a copy of her New York State driver license with an article on "The Gleaner" titled "Vanished into thin air Renter-A-Car Company fuming after American, car go missing." The subject article states that
forty days after an American woman rented a 2017 Toyota Corolla from Sixt Rent-A-Car at the Sangster International Airport, she seems to have disappeared into thin air and the vehicle is nowhere to be found. The woman, Antiellia M. Sterling, who tendered a New York State driver's license and a Visa credit card to the rental agency operated by Montegonians Orville and Nadine Spence, was scheduled to return the car on November 15. However, she did not turn up nor has she answered her phone.
The subject article further states that "[plaintiff] stopped payment on the charges of the car" and "despite efforts to reach [plaintiff] via emails and phone calls, she has remained unresponsive." The subject article also states that the police had been unable to identify plaintiff's location.
Plaintiff alleges that the aforementioned published statements caused her to be pursued and assaulted by defendant Sixt's servants, agents and employees carrying guns. Plaintiff also alleges that the published statement caused her to lose business contracts.
Defendant GUSA now moves for an order dismissing the complaint filed by plaintiff with prejudice pursuant to CPLR 3211(a)(1), 3211(a)(7), 3211(g), and/or Civil Rights Law § 76-a granting GUSA its costs and attorneys' fees pursuant to Civil Rights Law §70-a. Co-defendant Sixt Rent A Car LLC also moves for the same relief.
As to GUSA's claim that plaintiff sued the incorrect corporate entity, GUSA takes the position that they cannot be held liable as it is an American subsidiary of the Jamaican company responsible for the challenged publications, it did not publish the statements at issue and did not employ the journalist involved in the acts alleged in the complaint. It is well settled that, "[p] arent and subsidiary or affiliated corporations are, as a rule, treated separately and independently" (see Sheridan Broad Corp. v Small, 19 A.D.3d 331, 332 [1st Dept 2005]). This claim is substantiated by the affidavit of Normadelle Rose, the office supervisor at The Gleaner Company (USA) Ltd.The Gleaner Company(Media) Ltd. and GUSA does not publish either The Gleaner or The Gleaner Minute, nor does it employ the journalist allegedly responsible for the statements.
In opposition, plaintiff states that even if The Gleaner Company (Media) Ltd. is the correct corporate defendant, plaintiff has leave to amend the pleadings and that suing the wrong corporate defendant is not fatal to the action. The court disagrees. Plaintiff herein did not file a cross-motion seeking leave to amend and only referenced the intention to do so in the future. As defendant GUSA represents by affidavit its corporate status, and plaintiff failed to dispute same, all plaintiff's claims as to GUSA are dismissed without prejudice and the remaining branches of defendant GUSA's motion are denied as academic.
Co-defendant Sixt Rent A Car LLC's motion to dismiss and for attorney's fees and costs incorporates the motion filed by GUSA by reference and in addition, submits the affidavit of Dennis Boehringer, Vice President of Sixt Rent a Car, LLC, a printout from the Florida Division of Corporations Record and the filing with the Division of Corporations for the Florida Department of State with a certificate from the Delaware Secretary of State reflecting that Sixt is incorporated under the laws of the state of Delaware.
Boehringer states that Sixt LLC is a limited liability company organized under the laws of the State of Delaware and maintains its principal place of business in Fort Lauderdale, Florida. Moreover, he states that Sixt LLC is a subsidiary of Sixt Transatlantic GmbH. Sixt LLC's vehicle rental business is confirmed to the United States. Moreover, Boehringer attests that Sixt LLC does not transact business in Jamaica, West Indes, and has no servants, agents, or employees in Jamaica, West Indes. Lastly, he stated that Mr. Orville Mark Spencer, referenced throughout the verified complaint, has no connection to or relationship with Sixt LLC and is not its employee, agent, or servant and according to its records, Sixt LLC has never rented a vehicle to Sterling.
Sixt argues that the court lacks personal jurisdiction over Sixt as plaintiff failed to demonstrate Sixt presence in New York, such as being served within the state, or by exercising jurisdiction pursuant to CPLR 302(a), the long-arm statute- when a cause of action arises out of or relates to a non-resident defendant's contact with the State of New York (see generally McGowan v Smith, 52 N.Y.2d 268 (1981). Moreover, it is asserted that even if the statutory requirements for personal jurisdiction are met, the exercise of personal jurisdiction must also comport with due process in that defendant has "minimum contacts" with the state, and that any exercise of jurisdiction comports with "traditional notions of fair play and substantial justice." (see Intl Show Co v State of Wash., Ofice of Unemployment Comp. &Placement, 326 U.S. 310, 316 (1954). As such, plaintiff must demonstrate through sufficient evidence, through affidavits and relevant documents, to prove the existence of jurisdiction.
Furthermore, Sixt also takes the position that there is no basis for general jurisdiction over it under CPLR 301, as it does not have its principal place of business in New York and is not "at home" in New York. Additionally, Sixt also argues that there is no basis for long-arm jurisdiction under CPLR 302 as under CPLR 301 (a)(1) defendant must have conducted sufficient activities to have transacted business in the state, and the clams must arise from the transactions. (see Fanelli v Latman, 202 A.D.3d 758, 760 (2d Dept 2022).
Pursuant to CPLR §3211(a)(8), a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the court has not jurisdiction of the defendant. The ultimate burden of proving a basis for personal jurisdiction rests with the party asserting jurisdiction (Fanelli v Latman, 202 A.D.3d 758, 162 NYS.3d 140 [2d Dept 2022]). When opposing a motion to dismiss the complaint pursuant to CPLR 3211(a)(8) on the ground of lack of jurisdiction, a plaintiff "need only make a prima facie showing" that personal jurisdiction over the moving defendant exists (Opticare Acquisition Corp. v Castillo, 25 A.D.3d 238, 806 N.Y.S.2d 84 [2d Dept 2005]; Lowy v Chalkable, LLC, 186 A.D.3d 590, 129 N.Y.S.3d 517 [2d Dept 2020]).
Under modern jurisprudence, a court may assert general all-purpose jurisdiction or specific conduct-linked jurisdiction over a particular defendant. (Daimler AG v Bauman, 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 [2014]). Here, defendant Sixt submits, inter alia, the "Certificate of Designation of Registered Agent/Registered Office" which provides that Sixt is a limited liability company organized under the law of the State of Delaware, and which maintains its principal place of business in Fort Lauderdale, Florida. As such, this court has not general jurisdiction over the defendant.
Under New York's long arm statute, New York Courts may exercise personal jurisdiction over any nondomiciliary who transacts any business within the state or contracts anywhere to supply goods or services in the state. (see, CPLR §302[a]; Fanelli v Latman, 202 A.D.3d 758, 162 NYS.3d 140 [2d Dept 2022]). However, the CPLR §302(a)(1) jurisdictional inquiry is twofold:under the first prong the defendant must have conducted sufficient activities to have transacted business in the state, and under the second prong, the claims must arise from the transactions" (Fan elli v Latman, 202 A.D.3d 758, 162 NYS.3d 140 [2d Dept 2022]; Al Rushaid v Pictet &Cie, 28 N.Y.3d 316, 68 N.E.3d 1 [2016]; see D &R Glob. Selections, S.L. v Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292, 78 N.E.3d 1172 [2017]). To satisfy the second prong of CPLR §302(a)(1)that the cause of action arise from the contacts with New York, there must be an" 'articulable nexus' ... or 'substantial relationship' ... between the business transaction and the claim asserted"(Al Rushaid v. Pictet & Cie, 28 N.Y.3d 316, 68 N.E.3d 1 [2016]; Licci v Lebanese Canadian Bank,20 N.Y.3d 327, 984 N.E.2d 893 [2012]). "This inquiry is relatively permissive and does not require causation, but merely a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former, regardless of the ultimate merits of the claim. The claim need only be in some way arguably connected to the transaction." (Al Rushaid v Pictet &Cie, 28 N.Y.3d 316, 68 N.E.3d 1 [2016]).
Here, the conduct which caused the injuries occurred in Jamaica, and does not provide a basis for personal jurisdiction over Sixt. It is represented that Sixt does not conduct business in Jamaica and has no interest in the rental agency which rented the car to plaintiff. Plaintiff in her opposition failed to provide any evidence demonstrating jurisdiction over Sixt, with the exception of plaintiff's own affidavit, which failed to show that Sixt was present in or transacted business in New York and does not demonstrate the nexus between Sixt Rent-A-Car LLC with Sixt.com, where she in fact made the reservation. Moreover, plaintiff does not dispute Sixt's evidentiary showing that there is no basis for general jurisdiction under CPLR 301 or establish long-arm jurisdiction under CPLR 302(a)(2)-302(a)(4). It is also evident that plaintiff contradicted the allegations alleged in her complaint by asserting that while in New York she reserved a vehicle in Jamaica through Sixt.com in her opposition papers. In fact, and as defendant Sixt states in their Reply Memorandum, plaintiff's social media posts demonstrate that her rental agreement was with "Sixt Franchisee Jamaica" which is called "Sunsational Car Rental &Tours Lrd."
Accordingly, as plaintiff failed to allege any relationship between that entity and defendant Sixt and did not demonstrate that Sixt had anything to do with the Jamaican transaction and events that gave rise to the alleged causes of action herein, plaintiff's complaint is also dismissed as to co-defendant Sixt without prejudice and the remaining branches of co-defendant Sixt's motion are denied as academic.
Accordingly, it is hereby
ORDERED that, defendant The Gleaner Company (USA) LTD's motion for an order pursuant to CPLR §3211 dismissing the complaint in favor of defendant The Gleaner Company (USA) LTD ("GUSA") is granted as plaintiff's complaint is dismissed without prejudice, and denied in part as the remaining branches of defendant's motion was denied as academic, and it is further
ORDERED that, defendant Sixt Rent-A-Car LLC's motion for an order pursuant to CPLR §3211 dismissing the complaint in favor of defendant Sixt Rent-A-Car LLC ("Sixt") is granted as plaintiff's complaint is dismissed without prejudice, and denied in part as the remaining branches of defendant's motion was denied as academic, and it is further
ORDERED that, defendants shall serve a copy of this Order, with notice of entry, upon plaintiff within thirty (30) days of entry of the Order, This Constitutes the decision and order of the court.