INDEX NO.

513691/2015

FILED: KINGS COUNTY CLERK 11/09/2015 04:30 PM

NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 11/09/2015

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS

Index No.

----------------------------------------------------------------------)(
MISCHIEF KIDS, LLC., JANET RUSH

SUMMONS AND
COMPLAINT
Plaintiffs,

-againstEBAY, INC.,

Defendant,

----------------------------------------------------------------------)(

Plaintiff address:
70 Oceana Dr W PH2D
Brooklyn, NY 11235
The basis for venue:
Plaintiff's Business
Residence

To the above-named Defendant(s):

YOU ARE HEREBY SUMMONED to appear in the SUPREME COURT OF THE STATE OF NEW
YORK, COUNTY OF KINGS, at the office ofthe clerk. of said Court located at 360 ADAMS STREET,
within the time provided by law as noted below, and to file your answer to the annexed complaint with
the Clerk; upon your failure to Answer,judgment will be taken against you for the relief demanded in the
verified complaint, together with costs in this action.
Dated: Mineola, Nflw York
November~, 2015

Defendants' Addresses:
2145 Hamilton Ave.,
San Jose, CA 95125

A. Palmieri, Esc.
orney for Plaintiff
50 Mineola Blvd.
Mineola, NY 11501
(516) 248-9595

Please Note:
(a) If this summons is served by its delivery to you PERSONALLY within the Cow1ty of Kings, you must
appear and answer this complaint within twenty (20) days after such service; or (b) If this summons is
served by delivery to any person other than you personally, or is served outside the County of Kings, or
by publication, or by any means other than personal delivery to you within Kings County, are allowed
thirty (30) days after proof of service thereof is filed with the clerk of this Court within which you must
appear and answer.

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS

Index#

----------------------------------------------------------------------)(
MISCHIEF KIDS, LLC., JANET RUSH,
Plaintiffs,
-againstVERIFIED COMPLAINT

EBAY, INC.
Defendant,

----------------------------------------------------------------------)(
Plaintiffs, Mischief Kids, LLC and Janet Rush, by their attorney, Palmieri, Castiglione &
Nightingale, PC, complaining of the Defendant respectfully show to the Court and allege:
I.

PlaintitT, Janet Rush, is the Principal ofMischiefKids, LLC, an online merchant company

who sells clothing and accessories.

2.

Plaintiff, Mischief Kids, LLC., is a limited liability company duly organized and existing

under and by the virtues of the laws of the state of New York.
3.

Upon information and belief, at all times herein, Defendant EBA Y, INC. (hereinafter,

"eBay"), is a foreign business corporation with its principle place of business located at 2145 Hamilton
Ave., San Jose, CA 95125.
4.

Upon information and belief, at all times herein, the defendant was and still is a foreign

corporation duly authorized to do business in the State of New York.

5.

Upon information and belief, at all times herein, the defendant was and still is a foreign

corporation doing business in the State of New York.

AS AND FOR A FIRST CAUSE OF ACTION

6.

eBay is a virtual Internet marketplace on which members can sell goods and services in an

auction-style or fixed-price format. It is by far the largest site of its kind on the Internet, with more than

one hundred million registered users.

7.

Each product for sale on eBay has its own web page, called a "listing" or "auction," which

describes the product and allows potential purchasers to bid on or purchase the product.
8.

Each listing has both a brief subject line, called the "title" of the listing, and a longer

description.
9.

By typing in search terms, shoppers on eBay's website can search the title and description

of all listings on eBay for relevant auctions.

10.

In order to protect itself from liability for its users' violations of intellectual property

rights, and to comply with the Digital Millennium Copyright Act (hereinafter, "DMCA"), eBay created
the "Verified Rights Owner" program (herein after, "VeRO".)
11.

An owner of intellectual property who registers for the VeRO program can submit a notice

of claimed infringement to eBay stating that a particular auction violates its intellectual property rights.
12.

In filling out the notice of claimed infringement, the VeRO member must sign a statement,

under penalty of perjury, that it has a good-faith belief that the auction infringes its intellectual property
rights or the intellectual property rights of someone it represents.
13.

Once they make a complaint, eBay preemptively takes down the accused's account and is

supposed to inform them of who made the complaint.

14.

Defendants subsequently failed to follow their own procedure when they took down

PlaintiWs site multiple times, with no reimbursements. This cost the Plaintiff roughly $250,000.00 in
sales.
15.

It is normal practice for the VeRO program to take down a user's account without a chance

for the user to defend themselves.

16.

However, the accused are typically afforded the opportunity to confront the party making

the claim in order to sort the issue out. Once it is sorted out, the suspended account is restored.
17.

To date, Defendant has not afforded Plaintiff the opportunity to confront their accusers as

eBay has negligently allowed for anonymous complaints against Plaintiff.

18.

Defimdants erroneously took down Plaintiffs account multiple times.

19.

The first takedown lasted for 7 days on October 161h, 2014, then for 30 days on October

241\ 2014. Finally, on November 25 1\ 2014, Plaintiffs account was taken down for one year.
20.

These negligent acts caused Plaintiff to lose the opportunity to sell a significant number of

listings throughout the holiday season in 2014.

21.

Plaintiff duly and diligently performed all conditions to sell as a valid merchant on

eBay.com and at no point sold any counterfeit products.

22.

Plaintiff was unable to sell any of her products nor has she been able to confront her

accusers during the holiday season in 2014, nor has she been afforded the opportunity to do so to date.
Due to this gross negligence on the part of eBay, Plaintifflost out on the ability to hold auctions on their
products and was irreparably harmed.
23.

Due to the negligence on the part of Defendant, Plaintiff was damaged in the amount of

$250,000.00.
AS AND FOR A SECOND CAUSE OF ACTION

24.

Plaintiff repeats, reiterates, and realleges each and every allegation set forth in paragraphs

"l" through "22" as if each were more fully set forth herein.
25.

In addition to negligently suspending Plaintiffs account, on November 25 1h, 2014, on that

same day, eBay sent an email to Plaintiffs customers that Plaintiff is not a trustworthy seller.

26.

This email is untrue as Plaintiffs had all the proper documentation proving that she is not a

counterfeit seller.
26.

Due to eBay's actions, Plaintiffs has been defamed and their reputation as a company and

businesswoman on eBay has now suffered serious injury.

27.

Due to the damages suffered by eBay's actions, Plaintiff demands a sum of money in the

amount of$500,000.00 due to the libel per se committed against Plaintiff by eBay and in addition, seek
punitive damages.
AS AND FOR A THIRD CAUSE OF ACTION

28.

Plaintiff repeats, reiterates, and realleges each and every allegation set fmih in

paragraphs "1" through "26" as if each were more fully set forth herein.
29.

By not granting Plaintiff the information regarding who exactly was filing VeRO

claims against the company, eBay failed to follow the rules and procedures of their own End User
License Agreement and have thus availed themselves to this action.
30.

By not following their own procedures, Defendants did not allow Plaintiff due process

in order to properly remedy the accusations being thrown at them.

31.

Due to these actions, Plaintiffs account was erroneously suspended and Plaintiff was

damaged in an amount of $250,000.00

WHEREFORE, Plaintiff demands judgment against each Defendant for payment in the amount
of $1,000,0000.00, with interest thereon on the first, second, and third causes of action herein, and for
reasonable attorney's fees (to be detennined by this Court); together with all costs and disbursements
incurred in this action.

Dated: Mineola, NR'.w York

November':!l, 2015

0 A. PALMIE , ESQ.
torney for Plaintiff
250 Mineola Blvd.
Mineola, NY 11501
(516) 248-9595

VERIFICATION
STATE OF NEW YORK)
) ss:
COUNTY OF NASSAU)
The undersigned, an attorney admitted to practice in the Comis of New York State, shows:
Deponent is Vito A. Palmieri, the attorney of record for the Plaintiff, MIS CHElF KIDS, INC., in
the within action; deponent has read the foregoing SUMMONS AND VERIFIED COMPLAINT and
knows the contents thereof; the same is true to deponent's own knowledge, except as to the matters
therein stated to be alleged on information and belief; and as to those matters deponent believes it to be
true. This verification is made by deponent and not by said Plaintiff, as Plaintiff does not reside in the
County wherein your deponent's oflice is located.
The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as
follows: Investigations made on behalf of said PlaintitT.

Dated: Mineola, New York

November'-, 2015

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS

----------------------------------------------------------------------)(
MISCHIEF KIDS, LLC., JANET RUSH,
Plaintiff,
-againstEBAY, INC.
Defendant,

----------------------------------------------------------------------)(

Pursuant to 130-1, the attached;

SUMMONS & VERIFIED COMPLAINT
are not frivolous

Vito A. Palmieri, Esq.

Attorney for Plaintiff
250 Mineola Blvd.
Mineola, NY 11501
(516) 248-9595

To:
Attorney( s) for

Service of a copy of the within

is hereby admitted.

Dated:
Attorneys for