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Okeke v.

Civil Court of City of New York, Queens County

May 28, 2013

Benjamin OKEKE, Plaintiff,
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, 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 [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

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


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 boilerplate e-mails thanking him for contacting the company.

On December 15, 2011, Okeke called Cars' customer service twice, and one of its representatives advised him that listing

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would be removed. Later that day, Cars sent Okeke an e-mail indicating that it located and removed the fraudulent advertisement using the information Okeke provided. The e-mail also noted that the advertisement " was previously determined not to be a legitimate listing and removed as fraudulent."

On May 14, 2012, Okeke commenced the instant action against Cars and Capital One. He asserts three theories of negligence against Cars, alleging that it: (1) failed to ensure the legitimacy of users' listings or advertisements; (2) failed to [966 N.Y.S.2d 846] post adequate and proper notices and/or warnings to users about responding to listings or advertisements on the website; and (3) failed to promptly remove a listing after receiving notification that the listing was fraudulent.[3]



Cars initially argues that Okeke's case should be dismissed because it violates the TOS's provisions relating to forum selection, warranty disclaimer and limitations of liability. The TOS was located in a hyperlink at the bottom of the Cars website. It advises a user that " [b]y using the Site, you hereby agree that you are at least eighteen (18) years of age and bound by all of the following provisions of these Terms of Service." Cars argues that by using the website, Okeke agreed to be bound by the agreement's terms, which include a forum section clause providing that all litigation is required to be resolved in Cook County, Illinois. However, " in the context of agreements made over the internet, New York courts find that binding contracts are made when the user takes some action demonstrating that they have at least constructive knowledge of the terms of the agreement, from which knowledge a court can infer acceptance." Hines v., Inc., 380 Fed.Appx. 22, 25 (2d Cir.2010). Here, there is no evidence that Okeke possessed actual or constructive knowledge of referenced terms. As such, the Court finds that Cars fails to make a showing, at this stage of the proceedings, that Okeke is barred from pursuing his claims in the instant forum or the action must be dismissed pursuant to warranty or liability restrictions.

Page 586


Cars also argues that Okeke's claims are barred by the CDA (47 U.S.C. §§ 230, et seq. ), which grants providers of interactive computer services certain immunities from civil litigation. CDA § 230(c). For instance, the CDA mandates that such providers cannot be deemed to be a " publisher" or " speaker" of third-party content, thereby having the practical effect of barring defamation claims, which are the most common type of tort claim associated with the CDA. Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir.2009) (" The cause of action most frequently associated with the cases on section 230 is defamation." ) (citing to Carafano v., Inc., 339 F.3d 1119 (9th Cir.2003); Batzel v. Smith, 333 F.3d 1018 (9th Cir.2003)). Other tort claims, such as the common-law negligence claim presented here, are analyzed on a case-by-case basis, and courts have broadly construed the CDA's provisions in favor of granting immunity. See Gibson v. Craigslist, Inc., 2009 WL 1704355 at *3, No. 08-CIV-7735 (S.D.N.Y. Jun. 15, 2009) (quoting Atlantic Recording Corp. v. Project Playlist, Inc., 603 F.Supp.2d 690, 699 (S.D.N.Y.2009)).

Courts engage in a three-part inquiry to determine CDA § 230(c)(1) immunity: " (1) whether Defendant is a provider of an interactive computer service; (2) if the postings at issue are information provided by another information content provider; and (3) whether Plaintiff's claims seek to treat Defendant as a publisher or speaker of third party content." Nemet Chevrolet, Ltd. v., Inc., 564 F.Supp.2d 544, 548 (E.D.Va.2008); see also Gibson, 2009 WL 1704355 at *3. This essentially requires an initial [966 N.Y.S.2d 847] finding that the CDA is applicable to a defendant (first two prongs) and then an analysis of whether a defendant must be treated as a " publisher" or " speaker" (third prong) to sustain plaintiff's claim.

Cars readily meets the first prong of the analysis as it is a provider of an interactive computer service. An " interactive computer service" is defined in 47 U.S.C. § 230(f)(2) as " any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." The most common interactive computer service providers are websites. See Ascentive, LLC v. Opinion Corp., 842 F.Supp.2d 450, 473 (E.D.N.Y.2011) (citations omitted) (" Courts generally conclude that a website

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falls within this definition." ); Nemet Chevrolet, Ltd. v., 591 F.3d 250, 255 (4th Cir.2009) (discussing the CDA's application to website operators); Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 n. 6 (9th Cir.2008) (" Today, the most common interactive computer services are websites." ); Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir.2007) (" A web site ... enables computer access by multiple users to a computer server,' namely, the server that hosts the web site." ).

Cars also meets the second prong of the analysis as the posting at issue is that of another information content provider. " Information content provider" is defined in 47 U.S.C. § 230(f)(3) as " any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." Okeke's complaint alleges that the fraudulent information was posted by an unknown third-party, identified under the alias of Alan, and it does not allege that Cars posted the fraudulent information. See Gibson, 2009 WL 1704355 at *4 (holding the second element satisfied where plaintiff's complaint alleged that " an unknown individual, not the Defendant" placed an advertisement on defendant's site).

Cars likewise meets the third prong of the analysis as Okeke is attempting to treat Cars as the publisher of fraudulent material. For instance, Okeke's assertions that Cars failed to verify the legitimacy of advertisements and to promptly remove the fraudulent material once it was brought to its attention falls squarely within the CDA's immunity provisions. This is because traditional editorial functions of a publisher include actions " such as deciding whether to publish, withdraw, postpone or alter content." Shiamili v. Real Estate Group of New York, Inc., 17 N.Y.3d 281, 289, 929 N.Y.S.2d 19, 952 N.E.2d 1011 (2011) (quoting Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir.1997)). These actions are protected, and the privilege " extends to the provider's inherent decisions about how to treat postings generally." Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288, 296 (D.N.H.2008) (quoting Universal Commc'n Sys., Inc., 478 F.3d at 422). To hold otherwise would defeat congressional intent to encourage interactive computer service providers to undertake efforts to remove, block, edit, or restrict access to objectionable material. See

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Zeran v. America Online, Inc., 958 F.Supp. 1124, 1134-36 (E.D.Va.1997), aff'd 129 F.3d at 333 (" Liability upon notice would defeat the dual purposes advanced by § 230 of the CDA" as it would " reinforce[ ] service providers' incentives to restrict [966 N.Y.S.2d 848] speech and abstain from self-regulation" ; notice-based liability " would provide third parties with a no-cost means to create the basis for future lawsuits." ).

Moreover, the legal premise underlying Okeke's argument that Cars should have employed greater safeguards to ward against fraudulent activity has been soundly rejected by the Court of Appeals as exceeding New York's common law negligence obligations. Lunney v. Prodigy Services Co., 94 N.Y.2d 242, 251, 701 N.Y.S.2d 684, 723 N.E.2d 539 (1999) (" The rule plaintiff advocates would, in cases such as this, open an [internet service provider] to liability for the wrongful acts of countless potential tortfeasors committed against countless potential victims. There is no justification for such a limitless field of liability." ).


The Court lastly addresses Okeke's purported promissory estoppel claim, which was not asserted in the complaint and was raised for the first time in his opposition papers. Putting aside the defective nature of raising a new cause of action not asserted in any pleading, Okeke has not stated a claim for promissory estoppel. " The elements of a claim for promissory estoppel are: (1) a promise that is sufficiently clear and unambiguous; (2) reasonable reliance on the promise by a party; and (3) injury caused by the reliance." MatlinPatterson ATA Holdings LLC v. Federal Express Corp., 87 A.D.3d 836, 841-42, 929 N.Y.S.2d 571 (1st Dep't 2011). Here, Okeke articulates no " promise" made by Cars to him, much less reasonable reliance on such a representation. Indeed, Okeke's communications with Cars relating to the fraudulent transaction occurred after he had already wired the money to the seller thereby eliminating the possibility that any damages he suffered were the result of Cars' statements to him. In the end, Okeke's promissory estoppel claim is an impermissible attempt to use state common law to circumvent an express federal immunity mandate relating to an interactive computer service provider's decision-making regarding publishing, withdrawing, postponing or altering content. Shiamili, 17 N.Y.3d at 289, 929 N.Y.S.2d 19, 952 N.E.2d 1011 (quoting Zeran, 129 F.3d at 330).


Since Cars' actions or inactions are cloaked with CDA immunity, its motion to dismiss is granted, as Okeke's state common-law negligence claim is preempted by federal law. Accordingly

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, the Clerk is directed to enter judgment dismissing the complaint against Cars.

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