Frye Fisheries, LLC v. Ritchie Bros. Auctioneers (Am.), Inc.

Frye Fisheries, LLC v Ritchie Bros. Auctioneers (Am.), Inc. 2025 NY Slip Op 31875(U) May 8, 2025 County Court, Suffolk County Docket Number: Index No. 618628/2024 Judge: Evan M. Zuckerman 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.

SHORT FORM ORDER INDEX NO. 618628/2024

COi NTY COURT- STATE OF NEW YORK I.A.S. TE RM. PART 68 - SUFFOLK COUNTY

PRESENT: HON. EVAN 4. ZUCKERMAN Acting JudgH County Court ORIG. RTN DATE: SEPTEMBER 30, 2024 FINAL SUBMISSION DATE: APRIL 24, 2025 FRYE FISHERIES, LLC, MTN. SEQ. #: 001 MOTION: MD F laintiff, ORIG. RTN DATE: SEPTEMBER 30, 2024 FINAL SUBMISSION DATE: APRIL 24, 2025 -against• MTN. SEQ. #: 002 CROSS-MOTION: XMG RITCHIE BROS. AUCTIONEERS (AMERICA), INC. SUFFO _K COUNTY COUNTY ORIG. RTN DATE: FEB. 13, 2025 FINAL SUBMISSION DATE: APRIL 24, 2025 DEPARTMENT OF PUBL C WORKS, MTN. SEQ. #: 003 SUFFOLK COUNTY POL CE MARINE MOTION: MG BUREAU and TIMOTHY I EANEY, PLAINTIFF'S ATTORNEY: LAW OFFICES OF HARVEY A ARNOFF C>efendants. 206 ROANOKE AVENUE RIVERHEAD, NEW YORK 11901 (631) 727-3904

DEFENDANT RITCHIE BROS. ATTORNEY: DORSEY & WHITNEY LLP 51 WEST 52ND STREET NEW YORK, NEW YORK 10019 (212) 415-9200

DEFENDANT COUNTY ATTORNEY: CHRISTOPHER J. CLAYTON SUFFOLK COUNTY ATTORNEY H. LEE DENNISON BUILDING 100 VETERANS MEMORIAL HIGHWAY HAUPPAUGE, NEW YORK 11788 (631) 853-4049

Upon the follo• ving papers numbered 1 to _ g _ read on these motions and cross motion FOR INJUI CTIVE AND DECLARATORY RELIEF(olaintiffi and FOR DISMISSAL OF THE COMPLAINT PURSUANT TO CPLR 3211 (a)(1) lRitchie Bros. \ and CPLR 3211 (a)(7) (County): Order to Show Cause and supporting papers ~ ;Notice of

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FRYE FISHERIES v RITCHIE ROS., ET AL. Index No. 618628/2024 Page 2

Cross Motion to Dismiss and supporting papers 4-6; and Notice of Motion to Dismiss and supporting papers 7-9 ; it is,

ORDERED that thes motions are hereby consolidated for purposes of this determination; and it is furth r

ORDERED that the otion by defendant Ritchie Bros. Auctioneers (America) Inc. ("RBA") for an Order dismis ing the complaint against it, pursuant to CPLR 3211 (a) ( 1), is hereby GRANTED; and it s further

ORDERED that the otion by defendants Suffolk County Department of Public Works and Suffolk County olice Marine Bureau ("County defendants") for an Order dismissing the complaint a ainst them, pursuant to CPLR 3211 (a) (1), is hereby GRANTED; and it is further

ORDERED that plai tiff's motion, brought by Order to Show Cause, seeking injunctive and declaratory re ief against defendants is hereby DENIED as moot in light of the dismissal of plaintiff's cl ims against RBA and the County defendants.

This action concerns he sale and ownership of a 1961 Glading & Hearn Tug Boat, identified by the name "Matti uck." Plaintiff alleges that, on April 27, 2022, it purchased the vessel through an on line auc ion run by defendant RBA, on behalf of nonparty Iron Planet, for a tota l of $19,820.00. Pl intiff alleges that, at some point, the vessel was moved to the Suffolk County Police marin impound area in Oakdale, New York. Plaintiff further alleges that, despite multiple teleph ne calls and attempts to remove the vessel from the marina, it was unable to do so, eithe because of weather conditions or issues at the marina with equipment or scheduling. P aintiff alleges that, despite knowing that he was the owner of the vessel, the County defe dants subsequently conspired with RBA to sell the vessel for a second time, this time to efendant Timothy Heany. 1

By Order to Show Cause granted on August 2, 2024, plaintiff sought the following relief: (1) an Order staying th defendants from transferring, collateralizing, or secreting the vessel Mattituck; (2) an Or er declaring plaintiff to be the rightful owner of the vessel Mattituck, or in the alternativ , for the Court to appoint a receiver to take possession of the vessel Mattituck and safegu rd same pending a hearing and determination of this matter. In the complaint filed by plai t iff, which is annexed to its motion papers, plaintiff seeks to have the vessel Mattituck turned over to him, or for money damages and other relief.

1 It appears that, althoug he is named as a defendant, Timothy Heaney was not served with plaintiffs motion or with the sum ons and complaint.

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RBA has now moved f ran Order dismissing the complaint, pursuant to CPLR 3211 (a) (1) and (7), based on a andatory forum selection clause contained in the terms and conditions governing the onli e auction, or, alternatively, because it failed to state a claim against RBA.

The County defendan s cross-move for an Order dismissing the complaint against them , pursuant to CPLR 321 (a) (7), because plaintiff failed to timely file a notice of claim against the County, pursuan to County Law§ 52 and General Municipal Law§ 50-e, with respect to plaintiff's claims a ainst the County.

BA 's Motion to Dismiss

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1 ) may be granted only if the docum ntary evidence submitted by the moving party utterly refutes the factual allegati ns of the complaint and conclusively establishes a defense to the claims as a matter of law (see Goshen v Mutual Life Ins Co of NY, 98 NY2d 314, 326 [2002); Granada Condominium Ill Assn v Palomino, 78 AD3d 996, 996 [2d Dept 201 OJ; ontanetta v John Doe 1, 73 AD3d 78, 83 [2d Dept 2010)). For evidence to qualify as "documentary," it must be unambiguous, authentic, and undeniable (Fox Paine & Co., LLC v Houston Gas. Co. , 153 AD3d 673, 676 [2d Dept 2017]; ranada Condominium Ill Assn. v Palomino, supra; Fontanetta v John Doe 1, upra). Items such as judicial records, mortgages, deeds, and contracts will ualify in the proper case (see Eisner v Cusumano Constr., Inc., 132 AD3d 9 0, 941-942 [2d Dept 2015]; Fontanetta v John Doe 1, supra, at 84-85).

The documentary e idence upon which RBA is relying in moving for dismissal under CPLR 32 1 (a) (1 ), is the Iron Planet site terms and conditions (hereinafter, the "Agreem nt"), which is annexed to their motion papers (Exhibit "A"). RBA alleges that lro Planet is a subsidiary of RBA and plaintiff agreed to be bound by the Iron Plan t Agreement in order to use the GovPlanet online marketplace site to purch se the boat.

The Iron Planet Agreement identifies RBA as the "contracting entity" with respect to agreements in h e United States (Exhibit "A" at ,I 12). The Agreement states the following , in rel vant part, regarding the governing law/jurisdiction:

"This Agree ent shall be governed by the internal substantive I ws of the State of Washington, without respect to its conflict of laws principles .. . You hereby

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attorn to and gree to submit to the exclusive personal jurisdiction of he federal and state courts located in King County, Was ington for any action relating to this Agreement"

(/d. at ,t 12.2).

The Court notes tha the plaintiff failed to interpose opposition to RBA's motion and therefore has ubmitted no evidence showing that it was not bound by the Iron Planet Agreem nt or its mandatory forum selection clause. Because it appears that plaintiff is r quired to bring any action concerning the Agreement in a federal or state court i Washington State, the Court finds that RBA has conclusively established a defense to plaintiff's claims against it in this Court as a matter of law. For the for going reasons, RBA's motion is hereby GRANTED, and the complaint against it is dismissed.

County Defendants' Cross-Motion to Dismiss

The County defenda ts have cross-moved for an Order dismissing the complaint against them, pursuant to C LR 3211 (a) (1 ), based on plaintiff's failure to timely file a notice of claim against the aunty, pursuant to County Law § 52 and General Municipal Law§ 50-e, with respect to its claims against the County defendants. The Court notes that the plaintiff also failed to interpose opposition to the County's cross motion.

County Law§ 52 (1) states, in pertinent party:

Any claim or n tice of claim against a county for damage, injury or death, or f'invasion of personal or property rights, of every name and nat re, and whether casual or continuing trespass or nuisance and ny other claim for damages arising at law or in equity, allege to have been caused or sustained in whole or in part by or becise of any misfeasance, omission of duty, negligence or rongful act on the part of the county, its officers, agents, serva ts .or employees, must be made and served in compliance wi h General Municipal Law§ 50-E (Notice of claim). Every action u on such claim shall be commenced pursuant to the provisions of General Municipal Law § 50-1 (Presentation of tort claims).

General Municipal aw § 50-e requires, as a condition precedent to the commencement of an action against a public corporation, the filing of a notice of claim within 90 days of th date the claim arose.

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It is undisputed that plaintiff failed to serve any notice of claim upon the County with respect to its laims to recover the vessel and/or for money damages. In view of the f ,regoing, the County's motion to dismiss plaintiffs complaint against the Cou ty defendants is hereby GRANTED.

In light of the dismis al of the complaint against RBA and the County defendants, and the fact t at it appears that the remaining defendant Timothy Heaney was not served wi h the summons and complaint and the time to do so has long expired, plaintiff motion for injunctive and declaratory relief is hereby DENIED as moot.

The foregoing const tutes the decision and Order of the Court.

Dated: May 8, 2025

County Court

X FINAL DISPOSITI N NON-FINAL DISPOSITION

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