Montgomery v Props2Fantasy.com 2025 NY Slip Op 31797(U) May 15, 2025 Supreme Court, New York County Docket Number: Index No. 652809/2024 Judge: Judy H. Kim Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 05/15/2025 04:38 PM INDEX NO. 652809/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/15/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ---------------------------------------------------------------------------------X INDEX NO. 652809/2024 DANIEL MONTGOMERY, MOTION DATE 02/17/2025 Plaintiff, MOTION SEQ. NO. 001 -v- PROPS2FANTASY.COM, ADAM WEINSTEIN, DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion for JUDGMENT - DEFAULT .
Upon the foregoing documents, plaintiff’s motion for a default judgment is granted as to
his conversion claim against defendant Props2Fantasy.com and denied as to defendant Adam
Weinstein.
Plaintiff alleges that on or about October 22, 2022, he registered an account on the fantasy
sports website thrivefantasy.com (the “Website”), which is owned and operated by defendants
(NYSCEF Doc No. 2, complaint at ¶6). In doing so, he accepted the Website’s terms of use which
provided, inter alia, that he could withdraw his funds from the site “at any time and for any reason”
(id. at ¶12). Plaintiff then “entered several contests on the Website, yielding an account balance of
$39,427.50” (id. at ¶7). Despite attempts to withdraw $39,427.50 from this account on May 10,
2023, and February 23, 2024, plaintiff has been unable to do so (id. at ¶8). Plaintiff’s complaint
asserts claims for: (1) breach of contract; (2) unjust enrichment; (3) breach of the implied covenant
of good faith and fair dealing; and (4) conversion. He also seeks treble damages and attorney’s
652809/2024 MONTGOMERY, DANIEL vs. PROPS2FANTASY.COM ET AL Page 1 of 4 Motion No. 001
1 of 4 [* 1] FILED: NEW YORK COUNTY CLERK 05/15/2025 04:38 PM INDEX NO. 652809/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/15/2025
fees pursuant to General Business Law §349. Defendants failed to answer or appear and plaintiff
now moves for default judgment.
DISCUSSION
In order to establish his entitlement to a default judgment pursuant to CPLR 3215, plaintiff
must submit proof of: (1) service of the summons and complaint; (2) the facts constituting the
claim; and (3) defendants’ default in answering or appearing (see Gordon Law Firm, P.C. v
Premier DNA Corp., 205 AD3d 416, 416 [1st Dept 2022]). “CPLR 3215 does not contemplate that
default judgments are to be rubberstamped once jurisdiction and a failure to appear has been
shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of
the uncontested cause of action” (Feffer v Malpeso, 210 AD2d 60 [1st Dept 1994]). The standard
of proof is not stringent, amounting only to some firsthand confirmation of the facts” (id.).
As an initial matter, the branch of plaintiff’s motion seeking a default judgment as against
Adam Weinstein is denied. The complaint alleges that Weinstein is the founder and Chief
Executive Officer of Props2fantasy.com but lacks specific allegations of dominion, control, and
wrongdoing sufficient to meet the “heavy burden” to support piercing the corporate veil to hold
Weinstein personally liable for the acts of Props2Fantasy.com (see 2497 Realty Corp. v Fuertes,
232 AD3d 451, 452 [1st Dept 2024] [internal citations omitted]); see also Remora Capital S.A. v
Dukan, 175 AD3d 1219, 1220 [1st Dept 2019]).
Plaintiff has, however, established his entitlement to a default judgment against
Props2Fantasy.com on his conversion claim. “The tort of conversion is established when one who
owns and has a right to possession of personal property proves that the property is in the
unauthorized possession of another who has acted to exclude the rights of the owner” (Lewinter v
Charity Beverage USA Corp., 2008 NY Slip Op 31554[U] [Sup Ct, NY County 2008] [internal
652809/2024 MONTGOMERY, DANIEL vs. PROPS2FANTASY.COM ET AL Page 2 of 4 Motion No. 001
2 of 4 [* 2] FILED: NEW YORK COUNTY CLERK 05/15/2025 04:38 PM INDEX NO. 652809/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/15/2025
citations omitted]) and plaintiff has established that he has the right to possess the funds at issue
and that Props2Fantasy.com remains in possession of same despite his withdrawal attempts (see
e.g. Shabtai v HFZ Capital Group, LLC, 75 Misc 3d 1226(A) [Sup Ct, NY County 2022] [“An
action for conversion requires a specific, identifiable fund and an obligation to treat it in a
particular manner or otherwise return it”], order affd, appeal dismissed, 220 AD3d 471 [1st Dept
2023]). Plaintiff has also established that props2fantasy.com was served with process via the New
York State Secretary of State per BCL §306(b) and the follow-up mailing required by CPLR
3215(g)(4) (NYSCEF Doc Nos. 3, 10) yet failed to appear.
However, treble damages and attorney’s fees under GBL §349 are not warranted here. That
statute applies when a defendant “engaged in (1) consumer-oriented conduct that is (2) materially
misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or
practice” (Koch v Acker, Merrall & Condit Co., 18 NY3d 940, 941 [2012] [internal citations and
quotations omitted]). An act or practice is consumer-oriented when it has “a broader impact on
consumers at large” (Trump Vil. Section 4, Inc. v Lawless & Mangione Architects Engineers LLP,
2022 NY Slip Op. 33159[U], 15-18 [Sup Ct, Kings County 2022] [internal citations and quotations
omitted], affd sub nom. Trump Vil. Section 4, Inc. v Lawless & Mangione Architects & Engineers,
LLP, 2025 NY Slip Op 01003 [2d Dept 2025]). The facts set out here do not satisfy this standard.
By plaintiff’s own admission, he was informed of the Website’s terms and conditions at issue after
going to the Website and beginning the sign-up process. Accordingly, the representation in the
Website’s terms and conditions that customers could withdraw funds at any time was not directed
at the consuming public or “made for the purpose of inducing the public at large into consuming a
product or service or that the representations affected consumer decision-making” (Simmons v
Assistcare Home Health Services LLC, 2021 NY Slip Op 32966[U], 9-11 [Sup Ct, Kings County
652809/2024 MONTGOMERY, DANIEL vs. PROPS2FANTASY.COM ET AL Page 3 of 4 Motion No. 001
3 of 4 [* 3] FILED: NEW YORK COUNTY CLERK 05/15/2025 04:38 PM INDEX NO. 652809/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/15/2025
2021]). The fact that two other individuals have commenced separate actions against defendants
based on similar facts does not bring this action within the remit of GBL §349.
The Court does not reach the remaining causes of action of the complaint.
Accordingly, it is
ORDERED that the branch of plaintiff's motion for default judgment is granted in part, to
the extent that plaintiff Daniel Montgomery is granted leave to enter a default judgment as against
Free access — add to your briefcase to read the full text and ask questions with AI
Montgomery v Props2Fantasy.com 2025 NY Slip Op 31797(U) May 15, 2025 Supreme Court, New York County Docket Number: Index No. 652809/2024 Judge: Judy H. Kim Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 05/15/2025 04:38 PM INDEX NO. 652809/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/15/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ---------------------------------------------------------------------------------X INDEX NO. 652809/2024 DANIEL MONTGOMERY, MOTION DATE 02/17/2025 Plaintiff, MOTION SEQ. NO. 001 -v- PROPS2FANTASY.COM, ADAM WEINSTEIN, DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19, 20 were read on this motion for JUDGMENT - DEFAULT .
Upon the foregoing documents, plaintiff’s motion for a default judgment is granted as to
his conversion claim against defendant Props2Fantasy.com and denied as to defendant Adam
Weinstein.
Plaintiff alleges that on or about October 22, 2022, he registered an account on the fantasy
sports website thrivefantasy.com (the “Website”), which is owned and operated by defendants
(NYSCEF Doc No. 2, complaint at ¶6). In doing so, he accepted the Website’s terms of use which
provided, inter alia, that he could withdraw his funds from the site “at any time and for any reason”
(id. at ¶12). Plaintiff then “entered several contests on the Website, yielding an account balance of
$39,427.50” (id. at ¶7). Despite attempts to withdraw $39,427.50 from this account on May 10,
2023, and February 23, 2024, plaintiff has been unable to do so (id. at ¶8). Plaintiff’s complaint
asserts claims for: (1) breach of contract; (2) unjust enrichment; (3) breach of the implied covenant
of good faith and fair dealing; and (4) conversion. He also seeks treble damages and attorney’s
652809/2024 MONTGOMERY, DANIEL vs. PROPS2FANTASY.COM ET AL Page 1 of 4 Motion No. 001
1 of 4 [* 1] FILED: NEW YORK COUNTY CLERK 05/15/2025 04:38 PM INDEX NO. 652809/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/15/2025
fees pursuant to General Business Law §349. Defendants failed to answer or appear and plaintiff
now moves for default judgment.
DISCUSSION
In order to establish his entitlement to a default judgment pursuant to CPLR 3215, plaintiff
must submit proof of: (1) service of the summons and complaint; (2) the facts constituting the
claim; and (3) defendants’ default in answering or appearing (see Gordon Law Firm, P.C. v
Premier DNA Corp., 205 AD3d 416, 416 [1st Dept 2022]). “CPLR 3215 does not contemplate that
default judgments are to be rubberstamped once jurisdiction and a failure to appear has been
shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of
the uncontested cause of action” (Feffer v Malpeso, 210 AD2d 60 [1st Dept 1994]). The standard
of proof is not stringent, amounting only to some firsthand confirmation of the facts” (id.).
As an initial matter, the branch of plaintiff’s motion seeking a default judgment as against
Adam Weinstein is denied. The complaint alleges that Weinstein is the founder and Chief
Executive Officer of Props2fantasy.com but lacks specific allegations of dominion, control, and
wrongdoing sufficient to meet the “heavy burden” to support piercing the corporate veil to hold
Weinstein personally liable for the acts of Props2Fantasy.com (see 2497 Realty Corp. v Fuertes,
232 AD3d 451, 452 [1st Dept 2024] [internal citations omitted]); see also Remora Capital S.A. v
Dukan, 175 AD3d 1219, 1220 [1st Dept 2019]).
Plaintiff has, however, established his entitlement to a default judgment against
Props2Fantasy.com on his conversion claim. “The tort of conversion is established when one who
owns and has a right to possession of personal property proves that the property is in the
unauthorized possession of another who has acted to exclude the rights of the owner” (Lewinter v
Charity Beverage USA Corp., 2008 NY Slip Op 31554[U] [Sup Ct, NY County 2008] [internal
652809/2024 MONTGOMERY, DANIEL vs. PROPS2FANTASY.COM ET AL Page 2 of 4 Motion No. 001
2 of 4 [* 2] FILED: NEW YORK COUNTY CLERK 05/15/2025 04:38 PM INDEX NO. 652809/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/15/2025
citations omitted]) and plaintiff has established that he has the right to possess the funds at issue
and that Props2Fantasy.com remains in possession of same despite his withdrawal attempts (see
e.g. Shabtai v HFZ Capital Group, LLC, 75 Misc 3d 1226(A) [Sup Ct, NY County 2022] [“An
action for conversion requires a specific, identifiable fund and an obligation to treat it in a
particular manner or otherwise return it”], order affd, appeal dismissed, 220 AD3d 471 [1st Dept
2023]). Plaintiff has also established that props2fantasy.com was served with process via the New
York State Secretary of State per BCL §306(b) and the follow-up mailing required by CPLR
3215(g)(4) (NYSCEF Doc Nos. 3, 10) yet failed to appear.
However, treble damages and attorney’s fees under GBL §349 are not warranted here. That
statute applies when a defendant “engaged in (1) consumer-oriented conduct that is (2) materially
misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or
practice” (Koch v Acker, Merrall & Condit Co., 18 NY3d 940, 941 [2012] [internal citations and
quotations omitted]). An act or practice is consumer-oriented when it has “a broader impact on
consumers at large” (Trump Vil. Section 4, Inc. v Lawless & Mangione Architects Engineers LLP,
2022 NY Slip Op. 33159[U], 15-18 [Sup Ct, Kings County 2022] [internal citations and quotations
omitted], affd sub nom. Trump Vil. Section 4, Inc. v Lawless & Mangione Architects & Engineers,
LLP, 2025 NY Slip Op 01003 [2d Dept 2025]). The facts set out here do not satisfy this standard.
By plaintiff’s own admission, he was informed of the Website’s terms and conditions at issue after
going to the Website and beginning the sign-up process. Accordingly, the representation in the
Website’s terms and conditions that customers could withdraw funds at any time was not directed
at the consuming public or “made for the purpose of inducing the public at large into consuming a
product or service or that the representations affected consumer decision-making” (Simmons v
Assistcare Home Health Services LLC, 2021 NY Slip Op 32966[U], 9-11 [Sup Ct, Kings County
652809/2024 MONTGOMERY, DANIEL vs. PROPS2FANTASY.COM ET AL Page 3 of 4 Motion No. 001
3 of 4 [* 3] FILED: NEW YORK COUNTY CLERK 05/15/2025 04:38 PM INDEX NO. 652809/2024 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/15/2025
2021]). The fact that two other individuals have commenced separate actions against defendants
based on similar facts does not bring this action within the remit of GBL §349.
The Court does not reach the remaining causes of action of the complaint.
Accordingly, it is
ORDERED that the branch of plaintiff's motion for default judgment is granted in part, to
the extent that plaintiff Daniel Montgomery is granted leave to enter a default judgment as against
defendant Props2Fantasy.com on his fifth cause of action, for conversion, and is denied as against
defendant Adam Weinstein; and it is further,
ORDERED that plaintiff Daniel Montgomery is awarded a money judgment in his favor
as against defendant Props2Fantasy.com in the amount of $39,427.50, with interest at the statutory
rate from May 11, 2023, as calculated by the Clerk, plus costs and disbursements to be taxed by
the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that plaintiff shall serve a copy of this decision and order, with notice of entry,
upon defendants as well as the Clerk of the Court, who is directed to enter judgment accordingly;
and it is further
ORDERED that such service upon the Clerk of the Court shall be made in accordance
with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for
Electronically Filed Cases (accessible at the “EFiling” page on this court's website).
This constitutes the decision and order of the Court.
5/15/2025 DATE HON. JUDY H. KIM, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
652809/2024 MONTGOMERY, DANIEL vs. PROPS2FANTASY.COM ET AL Page 4 of 4 Motion No. 001
4 of 4 [* 4]