Motions sequence numbers 002 and 003 are consolidated for disposition.

In this action, plaintiff Jean Walton Leser d/b/a The Luxury Portal, an E-Bay on-line store' selling pre-owned luxury handbags and accessories, claims that defendants KarenKooper.com, a website selling luxury goods, and its purported affiliates, Luz Pendido a/k/a Karen Kooper and Christopher Penido a/k/a Karen Kooper, sought to destroy her business (i) by making false allegations about her and her business on the internet, and (ii) by "saying and doing things", while using her name, photo and e-mail address on the internet, including a pornographic website, in order to cast plaintiff and her business in a negative and false light.

Plaintiff's Amended Complaint seeks compensatory and punitive damages and injunctive relief against defendants based on: (i) statutory identity theft pursuant to General Business Law ("GBL") § 380-s (first cause of action); (ii) intentional infliction of economic damage (second cause of action); (iii) tortious interference with prospective economic advantage (third cause of action); [*2](iv) libel and casting plaintiff in a false light (fourth cause of action); (v) conversion and misappropriation (fifth cause of action); (vi) fraud (sixth cause of action); and (vii) breach of plaintiff's right to privacy and right to seclusion (seventh cause of action).

Plaintiff has moved (under motion sequence number 001) for an order:

(a)directing the defendants to desist and refrain from impersonating the person or business of plaintiff in any way, including on the internet;

(b)directing the defendants to cease and desist from posting false statement about the plaintiff and/or plaintiff's business anywhere, including the internet;

(c)directing the defendants to cease and desist from copying, duplicating, sketching, drawing, photographing, downloading, uploading, altering, destroying, photocopying, replicating, transmitting, delivering, sending, mailing, communicating or conveying the name of the plaintiff, the name of plaintiff's business, any personal information about plaintiff, plaintiff's e-mail addresses, IP addresses, tradenames, logos, photos, home or business addresses, and items sold or to be sold by plaintiff, to any third parties by any means whatsoever;

(d)directing the defendants to take down and have terminated any websites, blogs, subscriptions or any other postings on the internet made by defendants using or referring to any names connected with plaintiff or plaintiff's business;and

(e)issuing a warrant to obtain records stored in computers at defendants' home in Jamaica, Queens for the purpose of forensic examination by a computer expert for a period not to exceed 72 hours (upon which time the computer[s] will be returned) and to order and permit and 'so order' plaintiff's computer consultant to make a forensic image of the office computer used by defendant Christopher Penido (located at his place of employment, New York University - Information Technology Services Division: Communications & Computing Services Department) as long as any information obtained thereby is held confidential except as relates to this case and except if the information obtained indicates illegal activity.

This Court granted a temporary restraining order (as modified by Order dated April 23, 2007) which provides that "pending the further hearing of this matter, the defendants are directed to desist and refrain from impersonating the person or business of plaintiff in any way, including on the internet."

This Court also directed that plaintiff post an undertaking in the amount of $2,500.00, as well as $500.00 as security for costs, with 10 days of the April 23, 2007 Order, and provided that upon plaintiff's failure to post the undertaking within 10 days, "the temporary restraining order shall be automatically deemed vacated".

Defendants have opposed the motion for a preliminary injunction on the grounds, inter alia, that the Amended Complaint fails to state a single cause of action against them, and move (under motion sequence number 002) for an order pursuant to CPLR § 3211(a)(7) dismissing the Amended Complaint with prejudice for failure to state a cause of action and awarding sanctions on the ground that this action is completely without merit in law. [*3]

Defendants also move (under motion sequence number 003) for an order:

(1)quashing a subpoena previously served by plaintiff on Google, Inc. seeking information relating to the defendants (i.e., documents "[d]escribing the Administrative Contact and registration information, along with name, address, fax number, email and IP address of the registrant and registration of http://jeanwalton.blogspot.com") and imposing sanctions against plaintiff on the grounds that (i) plaintiff failed to serve a copy of the subpoena on defendants' counsel, and (ii) the subpoena was served after discovery was already stayed as a result of the pending motion to dismiss the Amended Complaint;^[FN1] and

(2)dismissing the Amended Complaint and vacating the previously granted temporary restraining order based on plaintiff's failure to timely post the undertaking in a timely manner.^[FN2]

Discussion

Defendants argue that the action must be dismissed against "Karencooper.com" on the ground that it not a jural entity amenable to suit.

It is well settled that a trade name "has no separate jural existence, and that it can neither sue nor be sued independently of its owner". Provosty v. Lydia E. Hall Hosp., 91 AD2d 658, 659 (2nd Dep't 1982).

The Amended Complaint fails to allege any facts showing that "Karen Kooper" is anything but a trade name. Therefore, that portion of the motion seeking to dismiss plaintiff's claims against defendant KarenKooper.com is granted.

Defendants further argue that the caption should be changed to delete "a/k/a Karen Kooper" from the names of the individual defendants based on an affidavit submitted by defendant Christopher Penido representing that neither he nor his mother, co-defendant Luz Penido, "have ever used the name Karen Kooper."^[FN3]

This branch of the motion is denied as premature, since no discovery has been exchanged in this action.

Defendants next argue that the first cause of action for statutory identity theft pursuant to [*4]GBL § 380-s must be dismissed for failure to state a claim under the statute.

Section 380-s, which is contained in New York's Fair Credit Reporting Act, provides as follows:

No person, firm, partnership, corporation, or association or employee thereof shall knowingly and with the intent to defraud, obtain, possess, transfer, use, or attempt to obtain, possess, transfer, or use credit, goods, services or anything else of value in the name of another person without his or her consent.

Defendants argue that the first cause of action fails to allege that defendants obtained anything "of value" in the plaintiff's name as a result of their alleged actions, and that plaintiff has not sustained any damages.

Plaintiff, on the other hand, argues that the first cause of action sufficiently states a claim for the use of something of value in her name without her consent since it alleges that defendants used her name, e-mail addresses, logos, trade names, photo and other identifiers of plaintiff and her business.

However, the Legislative Findings and Intent of L.1977, c. 867, relating to the Fair Credit Reporting Act, provide, in relevant part, as follows:

(a)The banking and retail systems are dependent upon fair and accurate credit reporting. Inaccurate credit reports, directly impair the efficiency of the state's economy, and unfair credit reporting methods undermine the public confidence which is essential to the continuing functioning of the banking and retail systems.

(e)It is the purpose of this act [adding this Article, comprising (section 380) and sections 380-a to 380-s;...] to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personal insurance and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy and proper utilization of such information in accordance with the requirements of this act.

The claim asserted by plaintiff herein does not involve credit reporting in any way and thus does not appear to fall within the intended scope of GBL § 380-s. Accordingly, that portion of the motion seeking to dismiss plaintiff's first cause of action must be granted. [*5]

Although the second cause of action of the Amended Complaint is labeled, intentional infliction of economic damage', both plaintiff and defendants agree that the second cause of action seeks to state a claim for prima facie tort'.

The elements of a cause of action for prima facie tort are: "(1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, and (4) by an act or series of acts that would otherwise be lawful". Burns Jackson Miller Summit & Spitzer v. Lindner, 59 NY2d 314, 332 (1983).

Defendants argue that the Amended Complaint "is insufficient to state a cause of action for prima facie tort insofar as it fails to plead special damages (citations omitted) and that the sole motivation" for defendants' alleged actions "was disinterested malevolence'(citations omitted)." Curiano v. Suozzi, 63 NY2d 113, 117 (1984).

This branch of the motion is granted to the extent of dismissing the second cause of action with leave to replead.

Defendants next argue that the third cause of action for tortious interference with prospective economic advantage must be dismissed for failure to state a claim on the ground that plaintiff has not identified a relationship with a third party that was damaged as a result of the alleged conduct.

This portion of the motion is granted on consent, plaintiff having withdrawn the third cause of action on the record on June 6, 2007.

In connection with the fourth cause of action for libel and 'casting plaintiff in a false light', paragraph 36 of the Amended Complaint alleges as follows:

When the Defendants copied goods that Plaintiff was selling and posted the same on a counterfeit website this was libel and casting Plaintiff in a false light. Similarly when Defendants posted Plaintiff's picture on a pornographic website and put solicitous remarks under her photo near pornographic photos, they cast Plaintiff in a false light that was libelous. Defendants are guilty of libel per se when they made false and damaging statements about plaintiff's selling practices and business and character on line at forums, blogs, and myspace.com in which it was foreseeable prospective customers and others in the luxury handbag industry would see these false publications. There are additional instances of libel as well, all related to the internet.

Defendants argue that the fourth cause of action must be dismissed for failure to state a claim because (i) there is no independent cause of action for casting an individual in a false light,^[FN4] and (ii) [*6]the Amended Complaint does not specifically plead the allegedly defamatory words, as required pursuant to CPLR § 3016(a).

However, "it is clear that publication of a photograph can constitute libel." Regan v. Sullivan, 557 F.2d 300, 308-309 (2nd Cir. 1977). See also, Burton v. Crowell Pub. Co., 82 F.2d 154 (2nd Cir. 1936).

Defendants also argue that the Amended Complaint fails to allege that plaintiff sustained any special damages.

"Slander as a rule is not actionable unless the plaintiff suffers special damage (citations omitted). Special damages contemplate the loss of something having economic or pecuniary value' (citation omitted)." Liberman v. Gelstein, 80 NY2d 429, 434-435 (1992).

Plaintiff argues that she need not plead special damages in this case because her claim falls within one or more of the four established exceptions to the general rule since her claim is based on "statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman." Liberman v. Gelstein, supra at 435.

The linkage of plaintiff's photograph to a pornographic website would appear to impute unchastity to plaintiff. Therefore, this Court finds that the Amended Complaint sufficiently states a claim for libel per se to the extent it is based on plaintiff's claim that her picture was posted by defendant on a pornographic website.

However, the Amended Complaint is deficient to the extent that it seeks to assert a claim for libel based on other statements allegedly made, because it does not set forth "the particular words complained of", as required by CPLR § 3016(a).

Accordingly, plaintiff is granted leave to replead her claim for libel (or libel per se) with greater specificity.

In the fifth cause of action for alleged conversion and misappropriation, the Amended Complaint alleges that defendants wrongfully copied and displayed material, including images of handbags, from her website and improperly displayed said material on other locations on the web, without her permission, where plaintiff's merchandise was allegedly represented to be counterfeit.

Defendants argue that the fifth cause of action fails to state a claim because the Amended Complaint fails to allege that plaintiff was ever deprived of the use of any material on her website and/or that any image or information was taken out of her dominion and control. [*7]

Plaintiff argues in opposition that the unauthorized use of images from her website, as well as her tradename, constitute a misappropriation and conversion of her property'.

Defendants concede that, under certain circumstances, the unauthorized use of material may give rise to a claim for copyright infringement. However, the tort of conversion has traditionally been defined as "the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights' (citation omitted)." State of New York v. Seventh Regiment Fund, Inc., 98 NY2d 249, 259 (2002).

Although the Court of Appeals recently held that the wrongful denial of access to electronic records that are stored on a computer (and are indistinguishable from printed records) may be subject to a claim of conversion in New York (see, Thyroff v. Nationwide Mutual Insur. Co., 8 NY3d 283 [2007]),^[FN5] the Court merely permitted the tort of conversion to "keep pace with the contemporary realities of widespread computer use" (Thyroff v. Nationwide Mutual Insur. Co., supra at 292). It expressly did "not consider whether any of the myriad other forms of virtual information should be protected by the tort" (Id. at 293), nor did it alter the definition of the tort itself.

Thus, a defendant who "does not exclude the owner from the exercise of his rights' is not liable for conversion (citation omitted)." State of New York v. Seventh Regiment Fund, Inc., supra at 259-260. The fifth cause of action must accordingly be dismissed.

Defendants next argue that the sixth cause of action for fraud must be dismissed for failure to state a claim on the grounds that it is not pled with the requisite specificity (see, CPLR § 3016[b]) and fails to allege that plaintiff detrimentally relied on defendants' false statements.

In opposition, plaintiff argues that defendants' alleged identity theft constitutes an actionable fraud for which she is entitled to recover compensatory and punitive damages.

However,

[t]he elements of a claim for fraud are: (1) misrepresentation or a material omission of fact which was false and known to be false by the defendant; (2) that the misrepresentation was made for the purpose of inducing the other party to rely upon it; (3) justifiable reliance of the other party on the misrepresentation or material omission; and (4) injury.

"Plaintiff cannot sustain a cause of action for fraud if defendant's misrepresentation did not [*8]form the basis of reliance" by the plaintiff. Securities Investor Protection Corporation v. BDO Seidman, L.L.P., 95 NY2d 702, 709 (2001).

The Amended Complaint does not allege any reliance by plaintiff on any misrepresentation or material omission. That portion of the motion seeking to dismiss the sixth cause of action must, therefore, be granted.

Defendants next argue that the seventh cause of action for breach of plaintiff's right to privacy and right to seclusion must be dismissed for failure to state a claim because there is no common law action for violation of said rights.

This portion of the motion is granted, plaintiff have conceded on the record that the seventh cause of action does not technically state an independent cause of action under New York law.

Accordingly, plaintiff's Amended Complaint in its entirety is dismissed against "KarenKooper.com", and plaintiff's first, third, fifth, sixth and seventh causes of action against the individual defendants are dismissed with prejudice and without costs or disbursements.

Plaintiff's second cause of action sounding in prima facie tort and plaintiff's fourth cause of action for libel (except to the extent set forth above) are dismissed with leave to replead within 30 days of service of a copy of this order with notice of entry.

Defendants Luz Penido and Christopher Penido shall serve an Answer or otherwise move with respect to the Second Amended Complaint within 20 days of service thereof.

The motion by defendants seeking to quash the subpoena served by plaintiff on Google, Inc. is granted without prejudice to plaintiff's right to seek the information sought in the subpoena during the course of discovery. Defendants' request for sanctions is denied, in the discretion of this Court.

Counsel shall appear in IA Part 12, 60 Centre Street, Room 341 on March 19, 2008 at 2:15 p.m. for further oral argument on plaintiff's motion for a preliminary injunction.

The Temporary Restraining Order as modified on April 23, 2007 is continued.

This constitutes the decision and order of this Court.

Dated:January 14, 2008__________________________

Barbara R. Kapnick

J.S.C.