Opinion
2015-05-21
Mal BRAVERMAN, Plaintiff–Appellant–Respondent, v. YELP, INC., Defendant–Respondent–Appellant.
Law Offices of Andrew C. Risoli, Eastchester (Andrew C. Risoli of counsel), for appellant-respondent. Ford Marrin Esposito Witmeyer & Gleser, L.L.P., New York (Andrew I. Mandelbaum of counsel), for respondent-appellant.
Law Offices of Andrew C. Risoli, Eastchester (Andrew C. Risoli of counsel), for appellant-respondent. Ford Marrin Esposito Witmeyer & Gleser, L.L.P., New York (Andrew I. Mandelbaum of counsel), for respondent-appellant.
TOM, J.P., FRIEDMAN, DeGRASSE, RICHTER, KAPNICK, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered February 25, 2014, which granted defendant's motion to dismiss the complaint, but declined to award costs, sanctions and attorney's fees, unanimously affirmed, with costs.
The court properly dismissed plaintiff's defamation claims based on the doctrine of collateral estoppel since plaintiff had a full and fair opportunity to litigate this claim in a prior action ( see Misek–Falkoff v. American Lawyer Media, 300 A.D.2d 215, 216, 752 N.Y.S.2d 647 [1st Dept.2002], lv. denied 100 N.Y.2d 508, 764 N.Y.S.2d 385, 796 N.E.2d 477 [2003] ). With respect to the additional causes of action, plaintiff failed to sufficiently state the claims for breach of contract and violations of General Business Law §§ 349(a) and 350.
To the extent plaintiff's allegations support a claim for fraudulent inducement, they must be brought in a different forum in accordance with the forum selection clause contained in the advertising agreement entered into by the parties. Plaintiff failed to meet his burden of showing that the forum selection clause should not be enforced ( see Brooke Group v. JCH Syndicate 488, 87 N.Y.2d 530, 534, 640 N.Y.S.2d 479, 663 N.E.2d 635 [1996] ).
The motion court providently exercised its discretion in declining to award defendant costs and attorney's fees. Defendantfailed to show that plaintiff's conduct in commencing this action was frivolous ( see 22 NYCRR 130.1.1; Grozea v. Lagoutova, 67 A.D.3d 611, 888 N.Y.S.2d 507 [1st Dept.2009] ).