This case is not published in a printed volume and its disposition appears in a table in the reporter.
The attorney for
plaintiff is Victoria M. Brown, Esq.
The attorney for
defendants is Richard A. Altman, Esq.
Barbara Kapnick, J.
Motions sequence numbers 002 and 003 are consolidated for disposition.
In this action, plaintiff Jean Walton Leser d/b/a The Luxury Portal, an E-Bay on-line store' selling pre-owned luxury handbags and accessories, claims that defendants KarenKooper.com, a website selling luxury goods, and its purported affiliates, Luz Pendido a/k/a Karen Kooper and Christopher Penido a/k/a Karen Kooper, sought to destroy her business (i) by making false allegations about her and her business on the internet, and (ii) by "saying and doing things", while using her name, photo and e-mail address on the internet, including a pornographic website, in order to cast plaintiff and her business in a negative and false light.
Plaintiff's Amended Complaint seeks compensatory and punitive damages and injunctive relief against defendants based on: (i) statutory identity theft pursuant to General Business Law ("GBL") 380-s (first cause of action); (ii) intentional infliction of economic damage (second cause of action); (iii) tortious interference with prospective economic advantage (third cause of action); (iv) libel and casting plaintiff in a false light (fourth cause of action); (v) conversion and misappropriation (fifth cause of action); (vi) fraud (sixth cause of action); and (vii) breach of plaintiff's right to privacy and right to seclusion (seventh cause of action).
Plaintiff has moved (under motion sequence number 001) for an order:
(a) directing the defendants to desist and refrain from impersonating the person or business of plaintiff in any way, including on the internet;
(b) directing the defendants to cease and desist from posting false statement about the plaintiff and/or plaintiff's business anywhere, including the internet;
(c) directing the defendants to cease and desist from copying, duplicating, sketching, drawing, photographing, downloading, uploading, altering, destroying, photocopying, replicating, transmitting, delivering, sending, mailing, communicating or conveying the name of the plaintiff, the name of plaintiff's business, any personal information about plaintiff, plaintiff's e-mail addresses, IP addresses, tradenames, logos, photos, home or business addresses, and items sold or to be sold by plaintiff, to any third parties by any means whatsoever;
(d) directing the defendants to take down and have terminated any websites, blogs, subscriptions or any other postings on the internet made by defendants using or referring to any names connected with plaintiff or plaintiff's business; and
(e) issuing a warrant to obtain records stored in computers at defendants' home in Jamaica, Queens for the purpose of forensic examination by a computer expert for a period not to exceed 72 hours (upon which time the computer[s] will be returned) and to order and permit and 'so order' plaintiff's computer consultant to make a forensic image of the office computer used by defendant Christopher Penido (located at his place of employment, New York University - Information Technology Services Division: Communications Computing Services Department) as long as any information obtained thereby is held confidential except as relates to this case and except if the information obtained indicates illegal activity.
This Court granted a temporary restraining order (as modified by Order dated April 23, 2007) which provides that "pending the further hearing of this matter, the defendants are directed to desist and refrain from impersonating the person or business of plaintiff in any way, including on the internet."
This Court also directed that plaintiff post an undertaking in the amount of $2,500.00, as well as $500.00 as security for costs, with 10 days of the April 23, 2007 Order, and provided that upon plaintiff's failure to post the undertaking within 10 days, "the temporary restraining order shall be automatically deemed vacated".
Defendants have opposed the motion for a preliminary injunction on the grounds, inter alia, that the Amended Complaint fails to state a single cause of action against them, and move (under motion sequence number 002) for an order pursuant to CPLR 3211(a)(7) dismissing the Amended Complaint with prejudice for failure to state a cause of action and awarding sanctions on the ground that this action is completely without merit in law.
Defendants also move (under motion sequence number 003) for an order:
(1) quashing a subpoena previously served by plaintiff on Google, Inc. seeking information relating to the defendants (i.e., documents "[d]escribing the Administrative Contact and registration information, along with name, address, fax number, email and IP address of the registrant and registration of http:// jeanwalton.blogspot.com") and imposing sanctions against plaintiff on the grounds that (i) plaintiff failed to serve a copy of the subpoena on defendants' counsel, and (ii) the subpoena was served after discovery was already stayed as a result of the pending motion to dismiss the Amended Complaint;  and
(2) dismissing the Amended Complaint and vacating the previously granted temporary restraining order based on plaintiff's failure to timely post ...