New York Dangerous LLC v Librot
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New York Dangerous LLC v Librot
2021 NY Slip Op 50584(U)
Decided on June 24, 2021
Supreme Court, New York County
Lebovits, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 24, 2021
Supreme Court, New York County
New York Dangerous LLC and LEON FEINGOLD, Plaintiffs,
against
Adam Librot, Defendant.
153001/2019
Leon Feingold, Esq., New York, NY, as plaintiff pro se, and as attorney for plaintiff New York Dangerous.
Adam Librot, New York, NY, defendant pro se.
Gerald Lebovits, J.
were read on this motion toDISMISS.
Gerald Lebovits, J.:
Plaintiff Leon Feingold is the sole proprietor of co-plaintiff New York Dangerous LLC. New York Dangerous is a membership organization that coordinates attendance at the annual Burning Man festival in Nevada. Defendant was a member of that organization for three years and served as an unpaid camp leader in 2016. During that time, Feingold alleges, Librot fraudulently solicited membership dues under the guise of acting on behalf of New York Dangerous, instead pocketing that money for himself.
Plaintiffs filed an action against Librot in this court on September 14, 2017. (See Index No. 655839/2017 [the first case].) Plaintiffs alleged three claims in that action: infringement on intellectual property, conversion, and "badmouthing." (See NYSCEF No. 32, at ¶¶ 22-32.) This court dismissed the second claim on July 11, 2018, as precluded by a prior judgment entered in the Small Claims Part of the New York City Civil Court. (See NYSCEF No. 22.) The third cause of action, for "badmouthing," was originally dismissed on that date as well. (See id.) On plaintiffs' motion for reargument, though, this court entered an order on September 21, 2018, vacating the dismissal of New York Dangerous's badmouthing claim. (See NYSCEF No. 33.)
On January 23, 2019, this court dismissed without prejudice plaintiffs' remaining claims against Librot due to Feingold's repeated failure to appear for scheduled preliminary conferences in the case. Librot's counterclaim in the action remained live. (See NYSCEF No. 21.) Plaintiffs have stated a desire to appeal this decision to the Appellate Division, First Department, but have not perfected an appeal.
In the current action, plaintiffs assert similar claims as in the first case. Plaintiffs allege that Librot acted unilaterally and contravened Feingold's instructions by purchasing four internet domain names in his own name; that he set up his own email using that domain name and instructed members to send their membership dues to Librot's new email address instead of to plaintiffs' email; and that Librot transferred $15,500, collected on behalf of the organization, to the defendant's personal accounts.
Librot now moves to dismiss. The motion is granted.
DISCUSSION
Plaintiffs served Librot with the summons in this action by e-filing the summons on the New York courts' NYSCEF e-filing system. Librot argues that this was not proper service, and therefore that the action is subject to dismissal under CPLR 3211 (a) (8) for lack of personal jurisdiction. This court agrees.
New York State ordinarily requires that service on a natural person be effected through a form of personal delivery: whether directly to the defendant or to the defendant's designated agent (see CPLR 308 [1], [3]); by leave-and-mail (see CPLR 308 [2]); or by nail-and-mail (see CPLR 308 [4]). Absent the agreement of the party to be served, resort to service through e-filing on NYSCEF—like other methods of expedient service—requires court authorization. (See CPLR 308 [5]; 22 NYCRR 202.5-b [f] [1]; accord Wimbledon Financing v Laslop 169 AD3d 550, 550 [1st Dept 2019].) Plaintiffs did not obtain either Librot's agreement or court authorization here.
Plaintiffs argue that Librot has consented to service by e-filing in this action because he previously consented to e-filing in the first case. As this court has already held (see NYSCEF No. 25), that argument is without merit. Consent to e-filing generally must be obtained separately in each new action involving a given party. (See 22 NYCRR] 202.5-b [b] [2] [i].) And a party must additionally consent to e-filed service of initiating documents, in particular. (See 22 NYCRR 202.5-b [f] [1].)
Plaintiffs also argue that Librot has waived his personal-jurisdiction defense by appearing in this action. This court disagrees. Librot has not filed a formal notice of appearance. Neither Librot's filing of a demand for the complaint, nor his later execution of adjournment stipulations, constituted an informal appearance. (See CPLR 3012 [b] [demand for complaint]; Rich v Lefkovits, 56 NY2d 276, 278 [1982] [stipulations].) And Librot's sole other form of participation in this action before moving to dismiss was opposing plaintiffs' motion for default judgment, in part on jurisdictional grounds. (See NYSCEF No. 18 at 2.) Filing that affirmation was not the sort of participation in this action on the merits that might constitute an informal appearance—particularly since Librot is pro se. (See HSBC Bank USA v A & R Trucking Co., 66 AD3d 606, 607 [1st Dept 2009] [holding that defendant did not waive her jurisdictional objections by moving to vacate a default judgment on the ground of improper service].)
The motion to dismiss is granted on personal-jurisdiction grounds. This court declines to reach the other grounds for dismissal raised by Librot.
Accordingly, it is hereby
ORDERED that defendant's motion to dismiss, and the complaint is dismissed, with costs and disbursements to be taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that defendant shall serve a copy of this order with notice of its entry on all parties; on the office of the General Clerk; and on the office of the County Clerk, which is directed to enter judgment accordingly.
June 24, 2021
Decided on June 24, 2021
Supreme Court, New York County
New York Dangerous LLC and LEON FEINGOLD, Plaintiffs,
against
Adam Librot, Defendant.
153001/2019
Leon Feingold, Esq., New York, NY, as plaintiff pro se, and as attorney for plaintiff New York Dangerous.
Adam Librot, New York, NY, defendant pro se.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42
were read on this motion toDISMISS.
Gerald Lebovits, J.:
Plaintiff Leon Feingold is the sole proprietor of co-plaintiff New York Dangerous LLC. New York Dangerous is a membership organization that coordinates attendance at the annual Burning Man festival in Nevada. Defendant was a member of that organization for three years and served as an unpaid camp leader in 2016. During that time, Feingold alleges, Librot fraudulently solicited membership dues under the guise of acting on behalf of New York Dangerous, instead pocketing that money for himself.
Plaintiffs filed an action against Librot in this court on September 14, 2017. (See Index No. 655839/2017 [the first case].) Plaintiffs alleged three claims in that action: infringement on intellectual property, conversion, and "badmouthing." (See NYSCEF No. 32, at ¶¶ 22-32.) This court dismissed the second claim on July 11, 2018, as precluded by a prior judgment entered in the Small Claims Part of the New York City Civil Court. (See NYSCEF No. 22.) The third cause of action, for "badmouthing," was originally dismissed on that date as well. (See id.) On plaintiffs' motion for reargument, though, this court entered an order on September 21, 2018, vacating the dismissal of New York Dangerous's badmouthing claim. (See NYSCEF No. 33.)
On January 23, 2019, this court dismissed without prejudice plaintiffs' remaining claims against Librot due to Feingold's repeated failure to appear for scheduled preliminary conferences in the case. Librot's counterclaim in the action remained live. (See NYSCEF No. 21.) Plaintiffs have stated a desire to appeal this decision to the Appellate Division, First Department, but have not perfected an appeal.
In the current action, plaintiffs assert similar claims as in the first case. Plaintiffs allege that Librot acted unilaterally and contravened Feingold's instructions by purchasing four internet domain names in his own name; that he set up his own email using that domain name and instructed members to send their membership dues to Librot's new email address instead of to plaintiffs' email; and that Librot transferred $15,500, collected on behalf of the organization, to the defendant's personal accounts.
Librot now moves to dismiss. The motion is granted.
DISCUSSION
Plaintiffs served Librot with the summons in this action by e-filing the summons on the New York courts' NYSCEF e-filing system. Librot argues that this was not proper service, and therefore that the action is subject to dismissal under CPLR 3211 (a) (8) for lack of personal jurisdiction. This court agrees.
New York State ordinarily requires that service on a natural person be effected through a form of personal delivery: whether directly to the defendant or to the defendant's designated agent (see CPLR 308 [1], [3]); by leave-and-mail (see CPLR 308 [2]); or by nail-and-mail (see CPLR 308 [4]). Absent the agreement of the party to be served, resort to service through e-filing on NYSCEF—like other methods of expedient service—requires court authorization. (See CPLR 308 [5]; 22 NYCRR 202.5-b [f] [1]; accord Wimbledon Financing v Laslop 169 AD3d 550, 550 [1st Dept 2019].) Plaintiffs did not obtain either Librot's agreement or court authorization here.
Plaintiffs argue that Librot has consented to service by e-filing in this action because he previously consented to e-filing in the first case. As this court has already held (see NYSCEF No. 25), that argument is without merit. Consent to e-filing generally must be obtained separately in each new action involving a given party. (See 22 NYCRR] 202.5-b [b] [2] [i].) And a party must additionally consent to e-filed service of initiating documents, in particular. (See 22 NYCRR 202.5-b [f] [1].)
Plaintiffs also argue that Librot has waived his personal-jurisdiction defense by appearing in this action. This court disagrees. Librot has not filed a formal notice of appearance. Neither Librot's filing of a demand for the complaint, nor his later execution of adjournment stipulations, constituted an informal appearance. (See CPLR 3012 [b] [demand for complaint]; Rich v Lefkovits, 56 NY2d 276, 278 [1982] [stipulations].) And Librot's sole other form of participation in this action before moving to dismiss was opposing plaintiffs' motion for default judgment, in part on jurisdictional grounds. (See NYSCEF No. 18 at 2.) Filing that affirmation was not the sort of participation in this action on the merits that might constitute an informal appearance—particularly since Librot is pro se. (See HSBC Bank USA v A & R Trucking Co., 66 AD3d 606, 607 [1st Dept 2009] [holding that defendant did not waive her jurisdictional objections by moving to vacate a default judgment on the ground of improper service].)
The motion to dismiss is granted on personal-jurisdiction grounds. This court declines to reach the other grounds for dismissal raised by Librot.
Accordingly, it is hereby
ORDERED that defendant's motion to dismiss, and the complaint is dismissed, with costs and disbursements to be taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that defendant shall serve a copy of this order with notice of its entry on all parties; on the office of the General Clerk; and on the office of the County Clerk, which is directed to enter judgment accordingly.
June 24, 2021
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