Opinion
CV-0105108-17
01-16-2019
EXPO SURE USA, Plaintiff, v. PITA LOVERS, Defendant.
Attorneys for Plaintiff: Richard Sokoloff, Esq., 990 S. Second Street, Suite 1, Ronkonkoma, NY 11779 (631) 696-8545 Attorneys for Defendant: Eugene O'Neill, Jr. Esq., 1551 Kellum Place, Mineola, NY 11501 (646) 765-1037
Attorneys for Plaintiff: Richard Sokoloff, Esq., 990 S. Second Street, Suite 1, Ronkonkoma, NY 11779 (631) 696-8545
Attorneys for Defendant: Eugene O'Neill, Jr. Esq., 1551 Kellum Place, Mineola, NY 11501 (646) 765-1037
Ignatius L. Muscarella, J.
The following papers have been considered by the Court on this motion submitted November 27, 2018
Papers Numbered
Notice of Motion w/ annexed supporting papers 1
Affirmation in Opposition w/ annexed supporting papers 2
Reply Affirmation 3
Cross-Motion w/ annexed supporting papers 4
Memorandum of Law in Opposition 5
By So Ordered Stipulation dated October 12, 2018 the defendant's motion to strike plaintiff's Notice of Trial and allow amendment of its Answer to assert the affirmative defense of violation of GOL § 5-903 was granted in which
1. the proposed Amended Answer was deemed served,
2. the motion would be considered as a motion for summary judgment,
3. any trial of this action would await determination of the motion and arbitration, and
4. a schedule was established for service of cross-moving papers by plaintiff and all responsive papers.
Plaintiff brings this action to recover damages stemming from defendant's alleged breach of an August 29, 2011 email management services contract (hereinafter "contract") which provides, inter alia, that "This as a twenty four (24) month contract" (¶ 3.3) and "This Agreement renews automatically for an additional period of twenty four (24) months unless terminated in writing by a client a minimum of ninety (90) days prior to the termination of this Agreement" (¶ 6.6).
There is no dispute that plaintiff sues for service allegedly rendered well beyond the initial 2 year period of the contract and that the defendant did not cancel the contract a minimum of ninety days prior to an automatic two year extension of the contract for the period a issue. At issue, however, is the validity of the automatic extension provision of the contract since it is also undisputed that plaintiff, as the provider of services did not send to defendant a notice advising of the existence of the automatic renewal provision "at least fifteen days and not more than thirty days" prior to the time when defendant would be obligated to terminate so as to avoid automatic renewal ( GOL § 5-903(2) ).
Insofar as is relevant to this proceeding, General Obligations Law § 5-903(2) states that automatic renewal provisions are not enforceable when they involve contracts for "service ... to ... personal ... property". Thus, the validity of the extension upon which plaintiff relies in bringing this lawsuit depends upon whether the parties' email management services contract involved service to personal property within the meaning of GOL § 5-903(2).
In Healthcare I.Q., LLC v. Tsai Chung Chao , 118 AD3d 98 [2014] the Appellate Division, First Department noted that the statute at issue neither defines the term "personal property", nor requires that the property be owned by the party receiving services. It goes on to note that prior case law has found personal property to include both tangible property as well as intellectual property and that since the pupose of the statute is remedial in nature ("protect[ing] service recipients from the harm of unintended automatic renewals of contracts for consecutive periods), it is to be broadly construed. The First Department in Healthcare thus concluded that the patient records obtained by the defendant medical provider constituted personal property such that the plaintiff's contract to provide billing and other management services could not be automatically extended absent prior notice from plaintiff in accordance with the dictates of GOL § 5-903(2).
Here, the information being serviced was the list of email addresses collected by defendant (see contract at ¶ 4.2). Indeed, plaintiff referenced same in relation to defendant as "your customer list" (¶¶ 1 and 5.1) or "your mailing list" (¶ 4.1).
Whether or not actually owned by the defendant and whether deemed tangible or intellectual, the email address list being serviced by the plaintiff constituted personal property within the meaning of GOL § 5-903(2) and, as such, plaintiff's extension of the servicing contract is unenforceable, rendering its claim thereon without merit.
Accordingly, defendant's motion for summary judgment dismissing plaintiff's complaint is granted. Plaintiff's cross-motion for summary judgment is denied.
Insofar as defendant additionally seeks an award of sanctions and/or attorney's fees, same is denied.
This constitutes the decision and order of the court.