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Okeke v. Cars.com

Civil Court of City of New York, Queens County

May 28, 2013

Benjamin OKEKE, Plaintiff,
v.
CARS.COM, Classified Ventures, LLC and Capital One, National Association, Defendants.

[966 N.Y.S.2d 844] Benjamin Okeke, Rosedale, pro-se Plaintiff.

Anthony DiPaolo, P.C., Anthony DiPaolo, Esq., Queens Village, for Defendants, Cars.com and Classified Ventures, LLC.

Lazer, Aptheker, Rosella & Yedid, P.C., Joseph C. Savino, Esq., Melville, for Defendant, Capital One, N.A.

[966 N.Y.S.2d 845] JAMES E. D'AUGUSTE, J.

Page 583

Defendants Cars.com [1] and Classified Ventures, LLC (collectively, " Cars" ), seek dismissal of Plaintiff Benjamin Okeke's complaint on the grounds that (1) the lawsuit violates a Terms of Service agreement (" TOS" ), including a forum selection provision, or, in the alternative, (2) the complaint is barred based upon the application of the Communications Decency Act of

Page 584

1996 (" CDA" ) or (3) otherwise fails to state a cause of action for negligence.

STATEMENT OF FACTS

On December 12, 2011, Okeke viewed an advertisement listing a 2012 Toyota Sequoia for sale on Cars' website, www. cars. com. The automobile's advertised purchase price was $13,287. The advertisement indicated that the car was being sold by an " [i]ndividual seller" named " Alan," who was located in Phoenix, Arizona. No contact information was provided other than the seller's phone number.

Using an interactive feature on Cars' webpage, Okeke submitted his name, zip code, and phone number. He received an e-mail from Cars indicating that the information Okeke submitted through the site was being sent to the seller. Thereafter, Okeke exchanged e-mails with the seller, which culminated in a requested wire transfer of funds to a Goldman Sachs account held in Barclays bank in London, England. Okeke was informed that once he wired the purchase price of the vehicle, the seller would ship the car to Okeke; Okeke would have five days to inspect the vehicle, and Barclays would keep the funds in escrow until Okeke completed his inspection. The seller also told Okeke that he could ship the vehicle back if, after inspection, the vehicle was not as the seller described.

On December 13, 2011, Okeke wired funds representing the purchase price to the seller from a local branch of Defendant Capital One, N.A. (" Capital One" ). [2] Okeke wired the funds without taking any precautions, such as confirming the seller's identity, running a title report on the vehicle, conferring with Barclays that it would hold the funds in escrow for the represented time period, or asking the seller why he was required to wire the funds outside the United States when the seller was putatively located in Arizona. The seller confirmed Okeke's payment and advised him that he would start the delivery process the next day. Despite the seller's promise to update Okeke within a few hours, Okeke never heard from the seller again.

On December 14, 2011, Okeke attempted to cancel his wire transfer with Capital One. He also sent Cars two e-mails to notify it of the fraudulent transaction. Cars responded with ...


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