Sellers v Carnival Cruise Line

[*1] Sellers v Carnival Cruise Line 2015 NY Slip Op 51455(U) Decided on August 31, 2015 Civil Court Of The City Of New York, Kings County Levine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 31, 2015
Civil Court of the City of New York, Kings County

Lance Sellers, Claimant,

against

Carnival Cruise Line, Defendant.



873.SCK 2014 - 1



Plaintiff Pro Se

Lance Sellers

3030 Emmons Avenue

Apartment No.4V

Brooklyn, New York 11235

Lance Sellers

2940 West 5th Street

Apartment 15G

Brooklyn, New York 11235

Attorneys for Defendant Carnival Cruise Lines

Guiliano McDonnell & Perrone, LLP

Joseph J. Perrone, Esq.

Arturo A. Castro, Esq.

170 Old Country Road, Suite 608

Mineola, New York 11201
Katherine A. Levine, J.

Plaintiff Lance Sellers ("plaintiff" or "Sellers"), a resident of New York City ("NYC"), brought this action in the Small Claims Part of the Civil Court to recover for damages he allegedly suffered while on a cruise with Carnival Cruise Line ("defendant" or "Carnival"). Sellers claimed that Carnival did not provide sufficient recreational activities for his infant child during the cruise. Defendant moved to dismiss on the grounds that the forum selection clause in the cruise contract mandated that any lawsuit be brought in the Florida courts and that this Court lacked in personam jurisdiction over defendant.

By decision dated March 30, 2015, this Court found that it need not enforce the forum selection clause as it was unreasonable to expect plaintiff to bring a small claim in Florida in view of the expenses, which could conceivably be greater than the actual claim. Full House Entertainment, Inc. v. Auto Life RX, 31 Misc 3d 64 (App. Term 2nd Dept. 2011); Scarcella v. America Online, Inc., 11 Misc 3d 19 (App. Term 1st Dept. 2005). Indeed, pursuant to New York City Civil Court Act ("CCA") § 1802, there shall be a simple, informal and inexpensive procedure for the prompt determination of matters in the Small Claims Part, and requiring that a claimant in the Small Claims Part go to Florida to pursue his claim would defy the objective of the establishment of that Part.

Defendant subsequently moved for reconsideration based upon its argument that the Court lacked in personam jurisdiction over defendant. A court's lack of jurisdiction is a non-waivable defense which may be raised at any stage of the action. Powers v Smith, 2015 NY Slip Op 50483(U), 47 Misc 3d 134(A), 134A (App. Term 2nd Dept. 2015). The Court then asked both sides to submit further evidence on the transaction leading up to the instant cruise contract. Upon review of the facts recently submitted, this Court must dismiss the action because it may not exercise jurisdiction over Carnival.

Carnival submitted an affidavit from its claims representative averring that Carnival is a Panamanian corporation with its principal place of business in Miami, Florida, and that Carnival has no office or business address in the State of New York. Carnival's claims representative further avers that plaintiff booked the cruise through National Leisure Group ("NLG")[FN1] , which served as plaintiff's travel agent, and that NLG contacted Carnival's reservation office in Miami and requested that a cruise be booked on behalf of Sellers. Carnival then confirmed plaintiff's reservation with NLG and emailed plaintiff's electronic cruise documents, including the cruise contract, to NLG. The Court notes that the cruise contract did not guarantee leisure activities for children. Following the confirmation, plaintiff could access his cruise documents by going onto Carnival's website. Plaintiff has not disputed these facts.

Plaintiff presented the following evidence in support of his claim that Carnival "can have business transactions from within New York:" 1) An "emergency contact" at "Intercruises Shore side,"[FN2] located in NYC, which is printed on a cruise itinerary that Sellers received before departing on his cruise; 2) a copy of a USPS Tracking receipt indicating that certified mail was delivered to the same address after the cruise; 3) a printed copy of an email of unknown origin dated March 2, 2015, which Carnival allegedly sent to Sellers' wife's email, containing an advertisement for a Carnival cruise; 4) a copy of an undated newspaper article from an [*2]advertising trade publication known as ADWEEK, which features a photograph of a wallboard advertisement for Carnival; 5) a copy of a New York Times article which discusses Carnival's advertising campaign; and 6) undated photographs of billboard advertisements for Carnival, the location of which is not documented. Plaintiff further claims that he bought food and drinks "while docked in NYC waters," and that "Carnival Cruise Line offers business transactions in NYC while docked in NYC." Notably absent from plaintiff's response to the Court's request is information regarding how he entered into the cruise contract.

Two New York statutes delineate the long arm jurisdiction of the Small Claims Part of the Civil Court. CCA § 1801 provides that the term "Small Claims" means a money action not in excess of $5,000, "provided that the defendant either resides, or has an office for the transaction of business or a regular employment" within NYC. CCA § 404(a) provides that the Civil Court may exercise jurisdiction when a plaintiff's cause of action arises from any of the following acts performed by a non-resident of NYC ("arising from criterion"): 1) Transaction of any business within NYC or contracts anywhere to supply goods or services in NYC ("business transaction criterion"); 2) commission of a tortious act within NYC ("tort criterion"); or 3) ownership, use or possession of any real property situated within NYC ("real property criterion"). As plaintiff only claims that Carnival was "transacting business" in NYC and does not aver that Carnival committed a tort or that it owned, used, or possessed real property in NYC, this Court will only rule on the business transaction criterion.

Section 404 is more favorable to plaintiff than § 1801 to the extent that the latter requires that a non-resident defendant have "an office for the transaction of business or a regular employment" within NYC, while § 404 only requires that the non-resident perform an act within NYC which meets the business transaction criterion. Indeed, Carnival's motion papers establish that it does not reside in NYC, or have an office for the transaction of business or a regular employment in NYC. In Powers, supra, the Appellate Term, applying § 1801 to determine jurisdiction in a small claims matter, reversed an order of the Small Claims Part directing that the defendant return a security deposit to the plaintiff. The Appellate Term reasoned that the defendant established that he did not live in or have an office for the transaction of business or a regular employment in the City and advised the plaintiff to bring a new action in Civil Court pursuant to § 404.

This Court will apply § 404(a) in the instant matter. It is a fundamental rule of statutory construction that statutes which relate to the same subject are in pari materia, and although they were enacted at different times, they should be interpreted together so that they are in harmony with each other. See, ACLU v. DOD, 40 F. Supp. 3d 377, 387 (S.D.NY 2014) (Statutes should be interpreted in line with other similar statutes); United States ex rel. Minge v. Hawker Beechcraft Corp. (In re Hawker Beechcraft, Inc., 515 B.R. 416, 429 (S.D.NY 2014) ("[A]djacent statutory subsections that refer to the same subject matter should be read harmoniously"); Allstate Enters. v. Amendola, 1988 U.S. Dist. LEXIS 19620 (W.D.NY 1988) (Two sections within the same Title of the U.S. Code shall be construed in harmony). Since "Small Claims Court" is not a separate court, but rather a separate part of the Civil Court (See, Widelec v. [*3]Silberstein, 187 Misc 2d 853, 854 (Civ. Ct. Qns. Co. 2001)), § 1801 should be restricted to defining the monetary limit for small claims and § 404 should be given a broad construction to include the bases for jurisdiction in both the Civil Court and its Small Claims Part.

It begs all reason to apply a more stringent jurisdictional test to the Small Claims Part, which is truly the "people's court," where everyday disputes, no matter how minor, are adjudicated. See, Arvelo v City of New York, 182 Misc 2d 101 (Civ. Ct. Rich. Co. 1999) (No rational basis for the disparity of treatment or the imposition of a greater burden on litigants to file a late notice of claim in Civil Court as opposed to the Supreme Court). See also, Sommerfield v Office of the Comptroller, 2009 NY Slip Op 52521(U), 25 Misc 3d 1240(A), (Civ. Ct. Qns. Co. 2009); Shane v City of New York, 2008 NY Slip Op 52270[U], 21 Misc 3d 1128[A] (Civ Ct, Rich. Co. 2008, Levine, J.) (Small Claims Part had the power to entertain claimant's motion to serve a late notice of claim). Furthermore, this Court takes an expansive view of jurisdiction because "New York has committed itself to a full exploitation of jurisdiction over nondomiciliaries." Lewin v. Bock Laundry Machine Co., 42 Misc 2d 599, 601 (Sup. Ct. Kings Co. 1964); aff'd, 22 AD2d 854 (2nd Dept. 1964), aff'd, 16 NY2d 1070 (1965).

Plaintiff, as the party seeking to assert personal jurisdiction, bears the burden of proving that the Civil Court has jurisdiction over the defendant. Castillo v Star Leasing Co., 69 AD3d 551 (2nd Dept. 2010); J.C. Healing Touch Rehab, P.C. v Access Gen. Ins. Co., 41 Misc 3d 145(A), 145A (App. Term 2nd Dept. 2013). Plaintiff has not met the business transaction criterion for jurisdiction. First, Carnival's alleged mailing address located in NYC and Sellers' receipt of a USPS Tracking receipt indicating that certified mail was delivered to that address, is insufficient to meet the business transaction criterion. It is well established that mailings, without more, are insufficient to establish that Carnival transacted business in NYC. See, Bayada Nurses, Inc., v. Blue Cross Blue Shield of Michigan, 2008 U.S. Dist. LEXIS 58218, *14, (E.D.Pa. 2008) (Nearly three years of payments from Michigan insurer to the plaintiff's P.O. box in Philadelphia was insufficient to establish minimum contacts with Pennsylvania); Cent. States, Southeast & Southwest Areas Pension Fund v. Phencorp Reinsurance Co., 530 F. Supp. 2d 1008, 1018-1019 (N.D. Ill. 2008) (A defendant's receipt of mail from a post office box in the non-domiciliary state, and its agent's use of this box to expedite mail delivery, did not amount to its availing itself of the benefits of the forum such that it could reasonably anticipate being brought into court); Minella v Restifo, 124 AD3d 486 (1st Dept. 2015) (Listing of NY office and telephone number on a website, without more, is insufficient to confer personal jurisdiction"); Sanchez v All Car Towing, 2015 NY Slip Op 50079(U), 46 Misc 3d 138(A), 138A (App. Term 2nd Dept. 2015) (Phone calls and mailings, without more, are insufficient to establish business transaction).

Plaintiff's claims that this Court has jurisdiction over Carnival because he bought food and drinks "while docked in NYC waters" and because "Carnival Cruise Line offers business transactions in NYC while docked in NYC." However, these de minimis activities do not satisfy the business transaction criterion. See, Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 198 (2d Cir. 1990) (Doing business has been consistently interpreted to mean that the defendant [*4]is engaged in a continuous and systematic course of business in New York; casual business in New York does not confer jurisdiction); E.I. du Pont de Nemours & Co. v. Kolon Indus., 2013 U.S. Dist. LEXIS 123949, 15-16 (S.D.NY Aug. 29, 2013) (No jurisdiction over foreign defendant who did not own property or have an office or permanent employees in New York, and who conducted only a de minimis amount of business in New York).

Plaintiff's contention that Carnival's advertisements on the radio, T.V., online, and billboards in NYC subject it to this Court's jurisdiction is also without merit since such advertisements do not satisfy the business transaction criterion. See, Girl Scouts of the United States v. Steir, 102 Fed. Appx. 217, 219 (2nd Cir. 2004) ("[M]ere solicitation of business within the state does not constitute the transaction of business within the state" in the absence of other New York-directed activities); Epstein v. Univ. of the South Pac., 2015 U.S. Dist. LEXIS 82114 (S.D.NY June 19, 2015) ("[W]here a website is directed at the entire United States with no evidence that defendants manifested the intent to specifically target New York or avail themselves of the benefits of New York law, there is no personal jurisdiction under CPLR § 302(a)(1)"); Mejia-Haffner v Killington, Ltd., 119 AD3d 912, 914 (2nd Dept. 2014) (Killington's maintenance of a website through which a person in New York could purchase services is too remote to support long-arm jurisdiction over a tort based action under CPLR § 302); Sedig v. Okemo Mountain, 204 AD2d 709, 710-711 (2nd Dept. 1994) (Tort claim, originating from a ski slope injury in Vermont, is too remote from the defendant's alleged sales and promotional activities in NY, which consisted of display of posters and brochures); Muollo v. Crestwood Village, Inc., 155 AD2d 420 (2nd Dept. 1989) (Solicitation of business in New York by advertising in newspapers and over the radio does not confer jurisdiction). It should also be noted that plaintiff presented absolutely no evidence that his current claims arise from Carnival's undated advertisements. In particular, the advertisements did not promise him any leisure activities for his infant child. Thus, Carnival's alleged advertisements in NYC do not confer upon it the jurisdiction of this Court.

The fact that Sellers had online access to his cruise documents via Carnival's website after his cruise was purchased through NLG also does not meet the business transaction criterion because "passive websites" which "merely impart information without permitting a business transaction, are generally insufficient to establish personal jurisdiction." Paterno v Laser Spine Inst., 24 NY3d 370, 377 (2014). Similarly, to the extent that Carnival allegedly "targeted" an email to Sellers' email address regarding its cruises, such email communication is not sufficient to establish personal jurisdiction. Id., at 378. See also, Nelson v. Mass. Gen. Hosp., 2007 U.S. Dist. LEXIS 70455 (S.D.NY Sept. 20, 2007) (Advertising communication by mail "weighs lightly when determining jurisdictional contacts"); 20@LLC v Lynde, 2012 NY Misc. LEXIS 3854 (Sup. Ct. NY Co. 7/30/2012) (Electronic communications in and of themselves generally are not be enough to establish jurisdiction). Furthermore, Carnival's alleged "targeted" email is dated March 2, 2015, which is after the cruise, and contains no promise of leisure activities for children. It is clear that the "targeted email" has no nexus to plaintiff's claim and does not satisfy the arising from criterion.

Since plaintiff has not proven any of the criteria for jurisdiction set forth in CCA § 404(a), [*5]the Civil Court may not exercise jurisdiction over Carnival and the action is dismissed.

This constitutes the decision and order of this Court.

DATED: August 31, 2015

_____________________________

KATHERINE A. LEVINE

Acting Justice, Supreme Court Footnotes

Footnote 1:The Court cannot determine from the face of the pleadings where NLG is located, the nature of the relationship between NLG and Carnival, how plaintiff found NLG or whom he paid, and will not consider any evidence outside of the pleadings regarding these issues.

Footnote 2:The Court cannot determine from the pleadings what the relationship is between "Intercruises Shoreside" and Carnival.