David Werner Intl. Corp. a New York Corp. v Gray

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David Werner Intl. Corp. a New York Corp. v Gray 2009 NY Slip Op 33457(U) October 19, 2009 Supreme Court, New York County Docket Number: 102547/09 Judge: Judith J. Gische Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 10 --- x DAVID WERNER INTERNATIONAL CORPORATION a New York Corporation, and DAVID WERNER, an individual, Decision/Order Index No.: 102547/09 Seq. Nos. : 001 Plaintiff, Present: Hon. Judith J. Gische -against- ALEXANDER GRAY, "JOHN DOE" 1-100 and "JANE DOE" 1-100, also names being fictitious and unknown to plaintiffs despite diligent inquiry, it being intended to designate those individuals, entities and others involved, individual and jointly, in posting and/or advertising for sale confidential Information belonging J.S.C. ·---........... to plaintiffs including, without limitation, client Defendants. ------------------------x Recitation, as required by CPLR 2219 [a], bf the papers considered in the review of this (these) motion(s): Numbered Defs n/m (3211 ), EJG affirm, AG affid, exhs • . . . . . . . . . • . . . • . . . . . . . . . . . . . . . • . OW affid, exhs • • • . . • • • • . • • • • . • • • • • • • • • . . • . • . . . . . . . . • . . • . • • . • . • • . • . . . • GIH affirm in opp. exhs . • • • . . • . . . . . . • • • • . . . . • . • . . . . • . . . . . • . . . . . . . • . . . • . EJG reply affirm . • • . . • . . . • • • . . . . . • . . • . . . . . . . . • • • • • • • • • . . . • • . • . . . • • • • • . 1 2 3 4 ---·--------..·--------------Upon the foregoing papers, the decision and order of the court ls as follows: Defendant Alexander Gray ("Gray'~ moves, pre-answer, to dismiss the complaint pursuant to CPLR § 3211. Plaintiff opposes the motion. For the reasons that follow, the motion Is denied in its entirety. ··, Plaintiff David Werner International Corporation ("DWIC11) Is in the business of "providing personalized marketing services for senior executives, generally Presidents Page 1 of 4 . , f agreements on the internet, et al., O Papers . I [* 2] .. and Vice Presidents, who desire to make a career transition." Plaintiff David Werner is the chief executive officer of DWIC. On September 29, 2006, Gray and DWIC executed an agreement in which DWIC provided employment..related consulting services to Gray. Gray, however, became dissatisfied with DWIC's performance and posfed a message on www.rfpoffreport.com. Plaintiffs commenced a lawsuit against Gray arising from that posting entitled David Werner aod David Werner International v. Gray, in the Supreme Court, New York County, Index No. 112099/08, alleging, inter a/la, claims for defamation. That action was ultimately settled between the parties pursuant to a Settlement Agreement. The Settlement Agreement provided in relevant part: 8. Confidentiality and Non-Disclosure: The Parties agree that the tenns and conditions of this Settlement Agreement shall remain confidential and not be disclosed to any other person (other than their respective attorneys) except upon court order or in response to judicial process. 9. Non-Disparagement: The Parties agree that, beginning immediately and continuing in perpetuity, Gray shall not (a) make, post or publish any critlcal, negative, defamatory, libelous or disparaging remarks about [the defendants]. It is understood by the Parties that this provision is not meant to conflict with the obligation to provide truthful testimony under penalty of petjury. Plaintiffs, in this action, claim they learned that the Settlement Agreement in its entirety had been posted for sale on Ebay. Plaintiffs have provided a copy of the Ebay posting, dated February 12, 2009, to the court. The Description section of the Ebay posting reads as follows: Available for sale ls a copy of a c11ent agreement written and signed by David Werner International and one of their clients. This is the type of Agreement you should expect ff you decide to pay for their services. If Page2of 4 [* 3] you are not familiar with this outfd, you could education yourself by visiting their website at www.dwic.com • ... You will receive a hard copy of the agreement, a complete copy of all the information I have been able to compile on the Internet about David Werner and his company David Werner International as well as a copy of the summons fil~d by David Werner International in the New York Supreme Court against one of their client(s). The Ebay posting also contains links to other websites containing aclients comments and complaints." David Werner, in his affidavit says that he asked a friend of his, Linda Wu. to purchase the Settlement Agreement from the seller "olitheoli. 11 Ms. Wu wrote to the sellter, who in turn gave Ms. Wu an email address, ag686@columbia.edu. Plaintiffs maintain that this email address belongs to Gray. On Feburary 221 2009, the Settlement Agreement was posted for sale on Ebay again. This time, the selling price was $5,000. Plaintiffs commenced this action alleging that Gray breached the Settlement Agreement, misappropriated DWIC s trade secrets and made defamatory statements 1 on various websites (along with other heretofore unnamed defendants). Gray moves to dismiss the complaint for: [1] failure to obtain personal jurisdiction; [2] failure to properly serve Gray; and [3] failure to state a cause of action. CPLR § 3211. The court will first address Gray's motion to dismiss based upon jurisdictional grounds. Gray argues that the court does not have personal jurisdiction over him because service was not properly effectuated. Gray has submitted his affidavit, as well Page 3 of 4 [* 4] as the affidavit of his wife, Sandra E. Gray. The Grays claim that they never received a copy of the summons and complafnt, either posted to their door or in the mall. Although plaintitrs affidavit of service on its face meets plaintiffs burden. Gray has raised an issue of fact sufficient to controvert the affidavit and require a traverse hearing. The issue of whether the court has obtained personal jurisdiction over Gray must be resolved before Gray's motion can be addressed. Therefore, the court hereby refers the issue of whether the defendant was properly served with the summons and complaint to a Special Referee to hear and report. The remaining aspects of Gray's motion will be held in abeyance until the reference as identified herein is fully resolved. Any requested relief not otherwise addressed herein has nonetheless been considered by the court and is hereby expressly denied. This constitutes the decision and order of the court. Dated: New York, New York October 19, 2009 So Ordered: .. Page4of 4

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