Opinion
No. CV–012451–13.
10-09-2015
Evgeny MISHIN, Plaintiff(s) v. Robbie MOTES d/b/a L & R Armory, Defendant(s).
Polizzotto & Polizzotto, LLC, Attorney for Plaintiff, Brooklyn. Langone & Associates, PLLC, Attorney for Defendants, Garden City.
Polizzotto & Polizzotto, LLC, Attorney for Plaintiff, Brooklyn.
Langone & Associates, PLLC, Attorney for Defendants, Garden City.
SCOTT FAIRGRIEVE, J.
Plaintiff moves for an order permitting plaintiff leave to amend it's complaint, by changing the caption from "Robbie Motes d/b/a L & R Armory" to "Robbie Motes" and adding "L & R Armory LLC" as a party defendant.
Defendant cross-moves for an order dismissing the complaint pursuant to CPLR 3211(a)(2), on the grounds that New York lacks personal jurisdiction over defendant.
This case involves the purchase of a M–53 machine gun (hereinafter referred to as the weapon).
Defendant submits the affidavit of James Robert Motes, dated June 30, 2015, arguing for dismissal. Mr. Motes states that he is a resident of Florida. He is a manager for L & R Armory, LLC (L & R) which is a limited liability company formed in Florida on March 20, 2009. L & R is a retail gun shop. L & R is not licensed to conduct business in the State of New York. L & R never advertised in New York nor solicited business in the State of New York.
Mr. Motes further states that a person by the name of Greg Novacheck, a Florida resident, came into L & R asking him to locate a vintage automatic rifle for a friend who lived in New York—plaintiff. Mr. Motes located the weapon in Oklahoma. He informed Mr. Novacheck of the price for the weapon and further told him to have the plaintiff call him about the weapon.
Plaintiff called defendant and paid for the weapon by credit card over the phone. Then defendant, Mr. Motes, had the weapon shipped from Oklahoma to New York.
Ten months after the purchase, plaintiff called Mr. Motes and told him that the weapon was inoperable. Plaintiff sent the weapon back to defendant for repair.
Upon inspection of the weapon, defendant, Robbie Motes, found that the weapon had been modified because the barrel and firing mechanism had been changed. The weapon was found to be in working order and was shipped back to plaintiff.
Plaintiff again contacted defendant, Mr. Motes, and insisted that the weapon did not work.
Plaintiff was offered his money back, but refused because he wanted the cost he had incurred to fix the weapon.
Defendant learned that plaintiff had two gun shops work on the weapon, who replaced the original barrel and original firing mechanism with "after market" parts. This caused the value of the weapon to be "greatly reduced."
Plaintiff submits his affidavit, dated July 10, 2015, in opposition. Plaintiff states a friend gave him the defendant's website at www.lrarmory.com because he was looking to purchase a machine gun. Plaintiff and Mr. Motes spoke on the phone many times about the type of machine gun that he was looking to purchase. Defendant sent him pictures of machine guns via email. In November of 2011, defendant sent him a picture of an M–53 machine gun. Plaintiff purchased the weapon via telephone order using his credit card for a total of $3,875.00. Defendant had the weapon shipped from Florida to T & T Gunnery, located at 2778 Merrick Road, Seaford, New York, where plaintiff picked up the weapon.
Plaintiff informed defendant that the weapon didn't work because it didn't fire bullets.
On November 15, 2012, defendant agreed to repair the weapon and on this same date, plaintiff sent the weapon back to defendant in Florida for repair.
Plaintiff indicates that numerous text messages were sent concerning repair of the weapon. The weapon was returned from Florida not repaired and inoperable.
Plaintiff contends that jurisdiction is properly asserted pursuant to CPLR 302(a)(1). He posits that jurisdiction is valid in New York because emails were sent to New York showing pictures of guns that he had for sale. Plaintiff viewed the emails and website and then purchased the weapon. Defendant also sent him emails of other merchandise for sale.
Plaintiff points out that the L & R website allows purchase of merchandise online through "in-store pickup" or "ship this order" by providing contact and credit card information.
Plaintiff could not find a weapon on line, and thus, gave his email to defendant who then sent pictures of guns that he might be interested in buying.
Plaintiff further points out that L & R's website provides the following means of communication between a consumer and defendant:
(a) telephone number
(b) email
(c) "contact us" link
(d) Facebook
(e) Twitter
Plaintiff asserts that the foregoing establishes defendant "transacting business within New York State, as well as across the country and world through the internet".
Plaintiff also maintains that defendant is subject to jurisdiction in New York by transacting business in New York via the shipment of the gun to New York for purchase by plaintiff and the gun being sent back to Florida for repair and then returned to New York. Plaintiff states that:
When the gun failed to be operable and functional, the defendant and I exchanged numerous text messages whereby he agreed to repair the gun. Upon receipt of the gun, Motes, through many text messages to me in New York, promised that he would repair the gun, confirm it is operable and functional and return the repaired gun to me in New York; thereby establishing an ongoing commitment to me. Please see Exhibit "C". However, Motes failed to repair the gun and returned the same inoperable gun.
Issue
Does this court have jurisdiction over the defendant pursuant to CPLR 302(a)(1) ?
Based upon the following analysis, the court finds that New York has jurisdiction over the defendant pursuant to CPLR 302(a)(1).
CPLR 302(a)(1) provides:
Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent, transacts any business within the state or contracts anywhere to supply goods or services in the state.
Grimaldi v. Guinn, 72 A.D.3d 37, 895 N.Y.S.2d 156 (2d Dept 2010), provided the framework for New York sustaining jurisdiction pursuant to CPLR 302(a)(1) :
" CPLR 302(a) is a ‘single act statute [and] proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted’ " (Kimco Exch. Place Corp. v. Thomas Benz, Inc., 34 A.D.3d 433, 434, 824 N.Y.S.2d 353, quoting Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140, cert. denied 549 U.S. 1095, 127 S.Ct. 832, 166 L.Ed.2d 665 ; see Bogal v. Finger, 59 A.D.3d 653, 874 N.Y.S.2d 217 ). "[T]he growth of national markets for commercial trade, as well as technological advances in communication, enable a party to transact enormous volumes of business within a state without physically entering it" (Deutsche Bank Sec. Inc. v. Montana Bd. of Invs., 7 N.Y.3d at 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140 ). Therefore, " ‘[s]o long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there, due process is not offended if that party is subjected to jurisdiction even it not "present" in that State’ " (id., quoting Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 466, 527 N.Y.S.2d 195, 522 N.E.2d 40 ).
The Second Department engaged in a detailed analysis concerning whether a defendant's website may subject it to jurisdiction in New York. The Court concluded that an active website may provide a sufficient basis for a court to exercise over a defendant:
If a Web site provides information, permits access to e-mail communication, describes the goods or services offered, downloads a printed order form, or allows online sales with the use of a credit card, and sales are, in fact, made (see generally D.J.'s Rock Creek Marina, Inc. v. Imperial Foam & Insulation Mfg. Co., 2003 WL 262495, 2002 U.S. Dist LEXIS 13470 [D.Kan.2003] ; Smith v. Basin Park Hotel, Inc., 178 F Supp 2d 1225 ; Dagesse v. Plant Hotel, N.V., 113 F.Supp.2d. 211 ; Hurley v. Cancun Playa Oasis Intl. Hotels, 1999 WL 718556, 1999 U.S. Dist. LEXIS 13716 [E.D.Pa.1999] in this manner in the forum state, particularly by the injured consumer (see American Network, Inc. v. Access Am./Connect Atlanta, Inc., 975 F.Supp. 494 ; Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 ; Kaloyeva v. Apple Vacations, 21 Misc.3d 840, 866 N.Y.S.2d 488 ), then the assertion of personal jurisdiction may be reasonable. This seems to be the trend for the sale of goods and services that are delivered after they are ordered by the consumer on his or her home computer.
In Grimaldi, the facts showed that plaintiff was an owner of a 1969 Chevrolet Camaro. Plaintiff purchased a vintage Chevrolet "cross-ram" manifold and carburetor assembly. He contacted the defendant Wayne Guinn about the installation of the foregoing on the Camaro. Plaintiff claimed that he had a series of communications with Mr. Guinn about the installation through numerous telephone calls, faxes, and emails. Plaintiff also viewed defendant's website. The plaintiff delivered the vehicle to Mr. Guinn at a repair shop in Pennsylvania. The plaintiff stated that the car was disassembled but the work was never completed. Plaintiff was sent pictures of the vehicle showing some progress. Despite promises of a completion date, the car was not completed and the work was not done in a workmanlike manner.
Plaintiff recovered the vehicle from defendant in a disassembled state, which caused the vehicle to be reduced in value from approximately $100,000 to a nominal amount.
The Second Department sustained jurisdiction even though a single transaction was involved:
Notwithstanding the foregoing, based on the totality of the circumstances (see Farkes v. Farkas, 36 A.D.3d at 853, 830 N.Y.S.2d 220 ), in light of the number, nature, and timing of all of the contacts involved, including the numerous telephone, fax, e-mail, and other written communications with the plaintiff in New York that Guinn initiated subsequent to his initial involvement in the project, as well as the manner in which Guinn employed his decidedly passive Web site for commercial access, Guinn must be deemed to have sufficient contacts with this State. Despite the fact that Guinn was not physically present in New York, the exercise of jurisdiction over him by the courts of this State does not offend due process (see Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140 ; Kreutter v. McFadden Oil Corp., 71 N.Y.2d at 466, 527 N.Y.S.2d 195, 522 N.E.2d 40 ). Moreover, provided that Guinn's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted, the fact that he was never in New York and only one transaction is involved does not preclude a finding that Guinn was subject to the jurisdiction of the New York courts (see Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d at 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140 ; Bogal v. Finger, 59 A.D.3d 653, 874 N.Y.S.2d 217 ; Kimco Exch. Place Corp. v. Thomas Benz, Inc., 34 A.D.3d at 434, 824 N.Y.S.2d 353 ).
In Chloé v. Queen Bee of Beverly Hills, 616 F.3d 158 (2d Cir.2010), the Court upheld jurisdiction in a trademark infringement action based upon CPLR 302(a)(1). The plaintiff was engaged in the business of selling leather handbags. As part of plaintiff's investigation, an administrative assistant employed by plaintiff ordered a counterfeit handbag from defendant Queen Bee's website which was shipped into New York. Defendant Simone Ubaldelli was deeply involved in the shipment of the handbag to the administrative assistance in New York. Additionally, Queen Bee shipped 52 other handbags into New York, even though defendant Ubaldelli may not have been involved with these sales. This was enough for the Court to exercise jurisdiction over Simone Ubaldelli. The Court emphasized that CPLR 302(a)(1) is a single act statute. Proof of one transaction is enough to sustain jurisdiction (even though the defendant doesn't travel to New York) where the defendant's acts were purposeful and there is a substantial relationship between the sale and the causes of actions asserted. The court indicated that absent the additional 52 bags shipped into New York, defendant Ubadelli's sole shipment of the bag into New York might well be sufficient to sustain jurisdiction.
Based upon the foregoing, the defendant is subject to jurisdiction.
The following facts support CPLR 302(a)(1) jurisdiction:
(a)Defendant shipped the weapon into New York to a location in Nassau County, where the plaintiff received delivery;
(b)Defendant has an active website, which allows a potential buyer or buyers to contact defendant by several methods, and orders can be placed through the website;
(c)Defendant sent emails showing different weapons which plaintiff could buy;
(d)The weapon was sent back to defendant in Florida from New York for repair. The weapon was sent back to New York from Florida after defendant inspected the weapon; and
(e)Text messages were exchanged between the parties about the repair of the weapon.
These factors support CPLR 302(a)(1) jurisdiction because the defendant's actions involving the sale and repair of the weapon bear a substantial relationship between the transaction and the claim asserted in Nassau County, State of New York.
Other cases supporting jurisdiction involving sale of goods into New York through a website include Johnson & Johnson and Lifescan v. Azam International Trading, 2013 WL 4048295 (E.D.N.Y.2013) and Envirocare Technologies LLC v. Simanovsky, 2012 WL 2001443 (E.D.N.Y.2012).
Thus, plaintiff has sustained his burden demonstrating that a prima facie showing exists that both defendants are subject to personal jurisdiction of the court. See Whitcraft v. Runyon, 123 A.D.3d 811, 999 N.Y.S.2d 124 (2d Dept 2014).
Sayeedi v. Walser, 15 Misc.3d 621, 835 N.Y.S.2d 840 (Civ Ct N.Y.2007) is distinguishable. In Sayeedi, the Court refused to sustain jurisdiction where the plaintiff purchased an automobile engine through an on-line auction sale. The Court noted that the ultimate destination of the auto engine was determined by potential buyers through the bidding process. In other words, the engine could have wound up in any part of the country depending on who bid the most money. The defendant didn't invoke the benefits and protections of New York law by this type of transaction.
In contrast, the defendant in the case at bar purposefully chose to ship their product into New York and thus invoked the benefits and protections of New York law.
Conclusion
The defendant's motion to dismiss is denied.
The court has jurisdiction pursuant to CPLR 302(a)(1).
Plaintiff's motion to amend to change the caption from "Robbie Motes d/b/a L & R Armory" to "Robbie Motes and L & R Armory LLC" as a party defendant is granted.
So Ordered.