Kaloyeva v. Apple Vacations

21 Misc. 3d 840
CourtCivil Court of the City of New York
DecidedOctober 8, 2008
StatusPublished
Cited by2 cases

This text of 21 Misc. 3d 840 (Kaloyeva v. Apple Vacations) is published on Counsel Stack Legal Research, covering Civil Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kaloyeva v. Apple Vacations, 21 Misc. 3d 840 (N.Y. Super. Ct. 2008).

Opinion

OPINION OF THE COURT

Sylvia G. Ash, J.

Plaintiffs, pro se, are seeking damages for fraud, negligence, breach of contract, unjust enrichment, deceptive business practices and violation of the Truth in Travel Act. Plaintiffs contend that defendant Apple Vacations, through its Internet Web site, advertised the Santana Beach Resort & Casino in the Dominican Republic as a resort having “white sandy beaches, crystal clear water, fresh fish and a superb international cuisine.” Based on the advertisement, plaintiffs made reservations for the resort through defendant Admiral Travel, a representative of defendant Apple Vacations. Plaintiffs claim that when they arrived at the resort location, the waters were murky, the beach was swarming with insects, the hotel rooms were infested with bed bugs, and the restaurant’s food made them ill with intestinal poisoning.

Procedural History

Plaintiffs, pro se, filed a summons and complaint in or about August 2007. In October 2007, defendant Apple Vacations served plaintiffs with a notice of motion to dismiss for lack of jurisdiction returnable December 14, 2007. On November 23, 2007, plaintiffs, in an attempt to amend their complaint, filed a stipulation discontinuing the action. On December 14, 2007, the court granted defendant Apple Vacations’ motion to dismiss plaintiffs’ complaint for lack of personal jurisdiction based on plaintiffs’ nonappearance on said date. In March 2008, plaintiffs moved to vacate the default judgment. Defendant Apple Vacations cross-moved to vacate the stipulation contending that said motion was unilaterally filed by plaintiffs. Plaintiffs also moved for a default judgment against defendant Admiral Travel upon the ground that it failed to answer the summons and complaint.

Issue

Whether defendant Apple Vacations’ Internet Web site activities are sufficient to invoke personal jurisdiction based on New York’s long-arm statute pursuant to CPLR 302 (a) (1).

[842]*842Applicable Law

CPLR 302 provides for long-arm. jurisdiction over those non-domiciliary defendants who have contact with the state. Section 302 (a) (1) confers personal jurisdiction over a defendant who in person or through an agent transacts any business within the state. By transacting business, a defendant is deemed to have purposefully availed himself of the privilege of acting in New York, thus invoking the benefits and protection of its laws (see Hanson v Denckla, 357 US 235, 253 [1958]). It is a “single act statute” and proof of one transaction is sufficient to invoke jurisdiction if there is a substantial relationship between the transaction and the claim even where the defendant never enters the state (see Kreutter v McFadden Oil Corp., 71 NY2d 460 [1988]; Citigroup Inc. v City Holding Co., 97 F Supp 2d 549 [2000]; Parke-Bernet Galleries v Franklyn, 26 NY2d 13 [1970]). The test for satisfying CPLR 302 (a) (1) is essentially a twofold one: The quality of the New York contact must be of such nature that a nonresident defendant can be deemed to have purposefully invoked the benefits and protection of New York law in satisfaction of due process (see Hutton v Piepgras, 451 F Supp 205 [1978]), and the claim in question must arise out of that purposeful New York activity (see Hanson v Denckla, supra).

Internet Web site activities of nonresidents can support the exercise of personal jurisdiction over the nonresident if the Web site is interactive to a degree that reveals specifically intended interaction with residents of the state (see World-Wide Volkswagen Corp. v Woodson, 444 US 286 [1980]). In Uebler v Boss Media (363 F Supp 2d 499 [2005]), the court found a Web site which enabled Internet users to order products as “highly interactive” and therefore supported the exercise of personal jurisdiction. However, where the Web site simply makes information available, the site is considered “passive” and does not justify the exercise of jurisdiction (see Bensusan Rest. Corp. v King, 937 F Supp 295 [1996]). This use of the Internet is the equivalent to an advertisement in a nationally available magazine (see Citigroup Inc. v City Holding Co., supra). In Blackburn v Walker Oriental Rug Galleries, Inc. (999 F Supp 636 [1998]), the court determined the exercise of jurisdiction by examining the level and the commercial nature of the exchange of information. In that case, the court characterized the Web site as passive because it did not allow for the placement of orders.

Discussion

Defendant Apple Vacations argues that its contact with New York consisted of accepting bookings by New York travel agents, [843]*843and that this limited contact does not rise to the level of doing business in New York sufficient to permit the exercise of long-arm jurisdiction. Defendant further argues that the cause of action does not arise out of the parties’ activities in New York, but is based on events which occurred in the Dominican Republic.

Plaintiffs argue that the alleged misrepresentation, which is the basis for their claim, occurred in New York; however, they did not learn of the misrepresentation until they arrived in the Dominican Republic. The essence of plaintiffs’ claim is that defendants misrepresented the quality of the resort. Plaintiffs are not suing defendants for the alleged food poisoning or the poor quality of the resort, plaintiffs are suing defendants for the alleged misrepresentation of the quality of the resort, its restaurant and beach. Plaintiffs argue that the misrepresentation was made on defendant’s Web site and that their business transaction with defendants gave rise to their claim, not the injuries allegedly sustained in the Dominican Republic.

The test for “doing business” within a state is a simple and pragmatic one which varies in its applications depending on the particular facts of each case (see Bryant v Finnish Natl. Airline, 15 NY2d 426 [1965]). In determining whether New York’s long-arm jurisdiction can be exercised over defendant Apple Vacations, this court will examine the level of interactivity of defendant’s Web site and the nature of the exchange of information. The court will determine from the facts whether the quality and nature of defendant’s contact within the state makes it reasonable and just to require defendant to defend this action in New York (see Laufer v Ostrow, 55 NY2d 305 [1982]).

It is undisputed that we live in an ever-changing technological era. In Hanson v Denckla (supra), the Supreme Court noted that “[a]s technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase.” (357 US at 250-251.) The advent of the computer and the Internet allows one to conduct all manner of transactions, both of a personal and professional nature, from the comfort of a desktop in his or her home. Companies have utilized the Internet to advertise their businesses in the hopes of increasing their profit margins. Companies have set up Internet Web sites wherein potential consumers, both domestic and foreign, could conduct business transactions directly with said companies. In Burger King Corp. v Rudzewicz (471 US 462, 476 [1985]), the Court observed: “[I]t is an inescapable fact of modern commercial life that a [844]

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Bluebook (online)
21 Misc. 3d 840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaloyeva-v-apple-vacations-nycivct-2008.