JEREMY K. LARNER, Plaintiff,
CHARITY BUZZ. INC., COPPY HOLZMAN, THE ART RESERVE, INC and ELI CONSILVIO, Defendants Index No.
MOTION DATE 08-21-2013.
MANUEL J. MENDEZ, Justice.
The following papers, numbered 1 to 9 were read on this motion to Dismiss Pursuant to CPLR §3211 and Cross-Motion to Dismiss Pursuant to CPLR §3211[a], ,  and CPLR §3211[c]:
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ........................1-4
Answering Affidavits — Exhibits___cross motion........................................5 - 6. 7 - 9
Replying Affidavits ................................................................
Cross-Motion: X Yes No
Upon a reading of the foregoing cited papers, it is ordered that defendants have met their burden of proof and established a basis to dismiss all causes of action against Eli Consilvio, Art Reserve Inc. and on the cross-motion against Coppy Holzman. Charity Buzz, Inc.'s motion filed under Motion Sequence 002, for an Order dismissing all claims against it, is granted. Plaintiffs motion to amend the complaint filed under Motion Sequence 003, is denied
The Art Reserve Inc. and Eric Consilvio's motion seeks to dismiss this action pursuant to CPLR §3211 [a], , , for failure to properly state a cause of action and for failure to obtain jurisdiction over them.
Coppy Holzman cross-moves to dismiss this action against him pursuant to CPLR §3211 [a], ,  and CPLR 3211[c ], because plaintiff has not served and filed an affidavit of service. Alternatively, Coppy Holzman claims the complaint fails to state causes of action and there was no direct agreement with the plaintiff resulting in personal liability.
Charity Buzz, Inc.'s motion, filed under Motion Sequence 002, seeks an Order pursuant to CPLR §3211 [a],  and CPLR §3211[c], dismissing this action against it, for failure to state a cause of action.
Plaintiff opposes all of the defendants' motions and under Motion Sequence 003, seeks an Order pursuant to CPLR §3025 [a], [b], [c], amending the complaint to assert additional causes of action for unjust enrichment and for aiding and abetting breach of a fiduciary duty.
Coppy Holzman is chief executive officer and chairman of Charity Buzz, Inc., a Delaware corporation listing its principal place of business as New York. Charity Buzz, Inc. had individuals bid on items to be auctioned off for charity through its website. On February 23, 2011, Charity Buzz Inc. posted an auction to be conducted live, the post read, "MveBID! Sponsor a Shepard Fairey Mural for the Pediatrics Wing of the LA County/USC Hospital, Including Naming Rights, Meet the Artist and Attendance at the Unveiling Reception." The proceeds from the auction were to go to Art of Elysium, a Los Angeles, California, based charity. Art of Elysium works with the, "Do Good Dream Big Program, " which obtains donations for pediatric wards of hospitals in California. Art of Elysium invited renowned artists to create art for permanent donation to help raise funds.
The website required the acceptance of a User Agreement before any bid was placed. Plaintiff accepted the agreement, placed a bid for $30, 000.00, and won the bid for the Shepard Fairey mural. On March 3, 2011, plaintiff wire transferred $30, 000.00 to the Charity Buzz Inc. website and received a confirmation of receipt of payment with directions to contact Eli Consilvio. Mr. Consilvio was described in the e-mail as the "point of contact at Art of Elysium for the project."
Plaintiff alleges that he repeatedly contacted Charity Buzz, Inc. and Mr. Consilvio throughout 2011, often with no response. He was subject to a prank call on November 15, 2011, related to Mr. Consilvio, and regarding the mural. On November 21, 2011, plaintiff received an e-mail from Mr. Consilvio which included an apology and was advised that the mural would be executed at ...