Lash Affair by J. Paris, LLC v Mediaspa, LLC

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Lash Affair by J. Paris, LLC v Mediaspa, LLC 2017 NY Slip Op 32668(U) November 27, 2017 Supreme Court, Westchester County Docket Number: 58370/2017 Judge: Terry J. Ruderman 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. [*FILED: NEW YORK COUNTY CLERK 12/21/2017 11:31 AM 1] NYSCEF DOC. NO. 27 INDEX NO. 652863/2017 RECEIVED NYSCEF: 12/21/2017 t~F~I=L~E=D~:~W=E=S~T~C~H=E~S~T=E~R~C~O~~~T~Y~~C=L=E=~~~l=l~/~2~8~)~2~0~1_7~1_1~=4~6~~~: ~YSCEF DOC. 7 2 17 INDEX NO. ss1 o1 o RE~EiVED NYSCEF: 11/27/2017 NO. 30 ' To commence the statutory time for appeals as of right (CPLR 55 I 3[a]), you are advised to serve a copy of this order, with .· . . ' of ·.· notice entry, upon all parties . . ' .,, '• SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER . : . . --------------------------~-----------~~--------------------------x LA.SH AFFAIR BY J. PARIS, LLC, .. ~Iaintiff, · DECISION ANb'ORDER Motion Sequence No. J Index No::s 831.012011 -against-. MEDJASPA, LLC, Defendant. ----• -· ---- ~- ----- --~ --------_:_ _-·~ ---------------- ~ ----------------x RUDERMAN, J. The.following papers were considered in connection with defendant's motion to dismiss the complaint in this'a~tjon pursuant to CPLR 321 l(a)(4) based on the existence of another pending action, or, in the alte.mativ~, to consolidate this action with t~e prior a~tion pending in New York County, pursuant to Cl~LR 602(a): Papers . ·. Notice of Moti.on, Affirmation, Exhibits A - B, and Memorandum of Law Affirmation.in opposition, exhibits A - M It is Numbered 1 2 undisput~d thaf pl~intiff Lash Affair by J. Paris, LLC ("L~sh Arfai_r") hired defendant Mcdiaspa, .LLC ("Media.spa") to buil.d a website for Lash Affair·.· The executed ·contra9t dated fc~ruary . 27,, 2016, provided that the project would cost $60,000 ·and take four months. . . . The ' ' parties' working relationship broke down in or around March 2017, .with each party taking the position that the other was in ~ef~ult ofthe contract. Mediaspa Claims that Lash Affair paid for . ' Mediaspa's work, as invoiced, until March 2017, when it refosed t~ pay an invoice"for $5,325, . '. ' \ for which Mediaspa now·secks a money judgment. Lash Affair claims that after repeated delays 1 of 7 2 of 8 ... , .. [*FILED: NEW YORK COUNTY CLERK 12/21/2017 11:31 AM 2] INDEX NO. 652863/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/21/2017 !FILED: WESTCHESTER COUNTY CLERK 11/2822017 11: 46 AMJ· INDEX NO: RECElVED NYSCEF: 11/27/2017 NYSCEF DOC. NO. 30 and.extra costs, it became apparent that Mediaspa was unable to perform the services as contracted, and it declared Mediaspa to be lri default. Lash Affair elaborates on the nature of the dispute .in its complaint, asserting that under ' ,,I the.parties' contract, Mediaspa agreed to provide Lash Affair with a website using the new Magenta 2 e-commerce platform, rather than the well-established shopping cart format known as the ' Magenta' 1. However, according to Lash Affair, Mediaspa failed to disclose that it had never . \ before built a website using the new Magenta 2 e-commerce platform, or that it would be using its work on Lash Affair's website to learn how to use the new platform. Lash Affair also claims that although it repeatedly advised Mediaspa that the website would need to be editable by.Lash Affair in-house, and although Mediaspa gave it assurances that it could work around, the limitations of Magenta 2, in fact, Magen to 2, as an open source platform, requires a developer to make any changes, so every future edit would require Mediaspa's services. \ By December 2016, Lash Affair had paid Mediaspa not only the agreed-on $60,000, but . an additional $11,990 to purchase software called Fishbowl, which Mediaspa claimed was . ' . necessary for the website bei11g constructed, as well as $12,564.89 in additional charges, purportedly for work that was not covered in the Scope of Work described in the contract. Therefore, Lash Affair states, on or about December 29, 2016, it advised lytediaspa to stop work on the contract. Yet, on or about March 9, 2017, Mediaspa sent an invoice for an additional $5,325, which amount Lash Affair refused to pay. ; Lash Affair hired an attorney who sent a demand Jetter to Mediaspa on May 1, 2017 seeking a refund of the $85,055.39 it had already paid to Mediaspa, and warning ofits intent to ' ) commence a lawsuit. Settlement discussions ensued but broke down, and Mediaspa filed its own I 58370/~017 2 2 of 7 3 of 8 [*FILED: NEW YORK COUNTY CLERK 12/21/2017 11:31 AM 3] NYSCEF DOC. NO. 27 !FILED: WESTCHESTER COUNTY CLERK llf28/20l 7 ll: 46 INDEX NO. 652863/2017 RECEIVED NYSCEF: 12/21/2017 AM) INDEX NO. 58370/2017. RECE:VED NYSCEF DOC. NO. 30 N~SCEF: action against Lash Affair iri New York County Supreme Court on May 26, 2017. That co~plaint alleges causes of action for breach of contract, unjust enrichment, and quantum meruit, and.seeks a money judgment of$5,325. Although Mediaspa notified Lash Affair of its action through emailed copies of the papers, Lash Affair was not formally served with the su~tnons.and complaint until Aug~st 18, 2017, almbst three months later . . Lash Affair filed this ~ctiOn againstMediaspa in Westehester County Supreme Court on ·;. May 31; 2017, a11d served Mediaspa with the papers on the ~ame date. The c~plaint contains cau~es of action for fraud iJ the inducement, breach of contract, negligence in performance of contractual work, constructi~e fraud, unjust enrichment and deceptive business practices in violation of General Business Law § 349. On August 18, 2017, the same date as Mediaspa .( . ' served the New York County summons and complaint, Mediaspa also filed this motion to dismiss the complaint in the Westchester action on the ground that this was the later-filed action. I . -'Soon thereafter, Lash Affair mov_~d in the New York County proceeding to dismiss pursuant to CPLR 32ll(a)(4)or, in the alternative, to change its venue to Westchester'County. That motion_ is. currently sub judice in New York County Supreme Court. Currently before this Court is Me1.iaspa's motion to dismiss the complaint in this action pursuant to CPLR 321J(a)(4) based on the existence Ofa prior pending action, or, in the alternative, to consolidate this action with the prior action pending in New York County, pursuant to CPLR-602(a). Analysis Pursuant to CPLR 321 l(a)(4), "[a] party may move for judgment dis~issing one or more causes of action asserted against him on the ground that: ... there is another action pending 3 3 of 7 4 of 8 ll/27/20~7 [*FILED: NEW YORK COUNTY CLERK 12/21/2017 11:31 AM 4] NYSCEF DOC. NO. 27 INDEX NO. 652863/2017 RECEIVED NYSCEF: 12/21/2017 (FILED: WESTCHESTER COUNTY CLERK llf2872017 11:46 AM] NYSC2F DOC. NO. 30 INDEX NO. 58370/2017 RECEIVES NYSCEF: li/27/2017 between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires." The cases Mediaspa cites emphasize that to dismiss on this ground, even where both actions aris~ qut of the same subject matter, "the reliefsought must be 'the same or substantially the same"' (see ·white Light Prods. v On the Scene Prods., 231 AD2d 90, 94 [I st Dept 1997]). Here, while Mediaspa seeks payment of a $5,235 invoice, Lash Affair seeks the return of the ·, $8S,055.39 it paid, based on its contention that, inter ali~, Mcdiaspa falsely claimed to have expertise in using a particular new e-commerce platform, and that this misrepresentation caused exfra expense and lengthy delays. Since the relief sought by the two parties is not the same or substantially the same, it is apparent that the action brought by Lash Affair may not be dismissed pursuant to CPLR 321 l(a)(4). There is, however, other appropriate relief that this Court may now order "as justice ( requires" pursuant to that statute. Absent dismissal, if the two actions proceed where each was brought, there is certainly, as M~diaspa points out, the possibility of conflicting rulings. The alternative relief suggested by Mediaspa, the consolidation of the two actions, is the appropriate remedy. The only remaining i / issue is the appropriate county in which the litigation should proceed . . -~he so-called "first to file" rule, regarding which court shoulq_determine an action where : the parties filed their actions in two ~eparate courts (see e.g. Wachtel/, Lipton, Rosen & Katz v CVR Energy, Inc., 143 AD3d 648 [lst Dept 2016]), is not applicable here. While Mcdiaspa commencc9 its New York County action by filing on May 26, 2017, five days before Lash Affair L commenced this Westchester County action by filing on May 31, 2017, that race-to-the. 4 4 of 7 5 of 8 , [*FILED: NEW YORK COUNTY CLERK 12/21/2017 11:31 AM 5] INDEX NO. 652863/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/21/2017 [FILED: WESTCHESTER COUNTY CLERK 11/28/2017 11:46 AMJ NYSCEF DOC. NO. 30 INDEX NO. 58370/2017 RECEIVED NYSCEF: 11/27/2017 courthouse victory is immaterial. Indeed, "courts have often deviated from the first-in-time rule where one party files the first action preemptively, after learning of the opposing party's intent to commence litigation" (L-3 Communications Corp. v SafeNet, Inc., 45 AD3d 1, 8 [1st Dept 2007], citing White Light Prods. v On the Scene Prods., 231 AD2d 90, 100 ["(d)efcndants should not be rewarded for their precipitous filing, approximately a week after learning of plaintiffs' intention to bring an action"]; see also IRXTherapeutics, Inc. v Landry, 150 AD3d 446, 447 [1st Dept 20 I 7]). Here, L~sh Affair informed Medias pa by its May 1, 2017 letter of i_ts intent to sue should the.parties be unable to settle, which tends to indicate that Mediaspa's prior filing was pre~mptive in nature. Moreover, following its May 26,, 2017 New York County filing, Mediaspa took no steps in that action; inde:ed, Mediaspa did not even serve Lash Affair until several months later. Where a complaint was not served in the "prior" action, "it did not constitute a prior pending action for ' the purposes of [CPLR 3211[a][4 ])" (Sotirakis v United Servs. Auto. Assn., 100 AD2d 931 [2d,. I ) . Dept 1984], citing Louis R. Shapiro, Inc. ~ Milspemes Corp., 20 AD2d 857 [I st Dept 1964] and / Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C321l:14, p 20). Accordingly, the Mediaspa action pending in New York County is not entitled to the designation of, or the protection accorded to, a prior pending action. Indeed, Federal courts in the Second Circuit have held that where a prior filed action "has been filed in apparent anticipation of th~ other pending proceeding[,] such a course of action is an equitable . co~sidcration militating toward 'allowing the later filed action to proceed to judgment in the plaintiffs chosen forum"' (see Hartford Accident & Indem.· Co. v Hop-On Intl. Corp., 568 F 5 6 of 8 'i' r, f 7 [*FILED: NEW YORK COUNTY CLERK 12/21/2017 11:31 AM 6] INDEX NO. 652863/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/21/2017 (FILED: WESTCHESTER COUNTY CLERK 11/28/2017 11: 46 AM) I~~EX RECEIVED NYSCEF DOC. NO. 30 NO. 58378/2017 NYSCE~: Supp 1569, I 573 (SD NY 1983], quoting Factors Etc., Inc. v Pro Arts, Inc., 579 F2d·2 I 5, 219 [2d' Cir 1978], cert denied, 440 US 909 [1979]). 1 The foregoing case law militates in favor of allowing the action to proceed tojudgment in Las,h Affair's chosen forum, Westchester County. Moreover, Westchester, rather than New York County, is the proper venue for the litigation to proceed. "[T]he place of trial shall be in the county in which one of the parties resided when it was· commenced; ... or, if none of the parties then resided in the state, in any county designated by the plaintiff' (CPLR 503 [a]). In Mediaspa's New York County complaint it states that it is a New York limited liability conipanylwith a business address in White Plain.s, Westchester County, New York. Indeed, this is the address that appears on Mediaspa's invoice to Lash Affair. Further, Medias pa's filing with the New York State Department of State provides an address in Rye, Westchester County, New York for service of process. The address listed in a party's certificate of incorporation as the location of its principal office is a proper location for " veriue purposes ('see Memminger v Nelson Gardens, Inc., 14 AD3d 442, 443 [1st Dept 2005]; CPLR 503[c]). Since Lash Affair is a Connecticut limited liability company with a business address in Phoenix, Arizona, the pro.per place of venue pursuant to CPLR 503(a) is where Mediaspa resides I and maintains offices. That venue is Westchester County. The only nexus between this litigation and New York.County is that Mediaspa's principal resides in New York County, which is not relevant to the consideration of the proper venue. Therefore, the consolidated action should be heard in Westchester County rather than New York County. I Since, where a party moves for dismissal pursuant to CPLR 321 l(a)(4), the court may 6 6 of 7 7 of 8 ll/27/2017 [*FILED: NEW YORK COUNTY CLERK 12/21/2017 11:31 AM 7] NYSCEF DOC. NO. 27 INDEX NO. 652863/2017 RECEIVED NYSCEF: 12/21/2017 !FILED: WESTCHESTER COUNTY CLERK 11/28}2017 11: 46 AMJ lNDEX NO. :i8J70U017 RECEIVED NYSCEF: 11/27/2017 NYSCEF DOC. NO. 30 "make such order as justice requires," Mediaspa's motion is granted only to the extent of ' directing the consolidation of the two actions in Westchester County. Accordingly, it is hereby ORDERED that the action cncaptioned Mediaspa LLC v Lash Affair By J. Paris, LLC, New York County Index No. 652863/2017, is transferred from Supreme Court, New York County to Supreme Court, Westchester County, and the Clerk of the Supreme Court, New York County, is directed to mark its records accordingly and to transfer any files in that matter to the Clerk of the Supreme Court, Westchester County, and it is further ORDERED that the files transferred from the action encaptioned Mediaspa LLC v Lash Affair By J. Paris, LLC, under New York County Index No. 652863/2017, shall be consolidated with and into Westchester County Index No. 58370/2017 in the case encaptioned Lash Affair by J. Paris, LLC v Mediaspa LLC, and the Mediaspa pleading shall be deemed an answer with counterclaims, and it is further ORDERED that the parties are directed to appear for a preliminary conference on M~nday, January 29, 2018, at 9:30 a.m. in the Preliminary Conference Part, Courtroom 811, Westchester County Supreme Court, 111 Martin Luther King Boulevard, White Plains, New York. This constitutes the Decision and Order of the Court. Dated: White Plains, New York November 2..f, 2017 7 7 of 7 8 of 8

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