| Mehmet v Add2Net, Inc. |
| 2009 NY Slip Op 07200 [66 AD3d 437] |
| October 8, 2009 |
| Appellate Division, First Department |
| B. David Mehmet, Appellant, v Add2Net, Inc., DoingBusiness as Lunarpages.com, Inc., Respondent. |
—[*1] Rivkin Radler LLP, Uniondale (Melissa M. Murphy of counsel), for respondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered March 10,2009, which granted defendant's motion to dismiss the amended complaint with prejudice,unanimously affirmed, with costs.
Plaintiff entered into a contract for defendant to provide, among other services, web hostingservices for his Web site. Defendant's services agreement provided that plaintiff would makeperiodic payments, and noted that service could be interrupted in the event of late payment. Theagreement incorporated by reference an acceptable use policy (AUP) and provided that anybreach of that policy would be grounds for suspension or termination of plaintiff's account.Under the AUP, plaintiff agreed "not to abuse whether verbally or physically or whether inperson, via email or telephone or otherwise . . . any employee or contractor of[defendant]."
The agreement also provided that plaintiff's account could be suspended for, among otherthings, breach of "any term" of the agreement, and in the event of suspension, defendant retainedthe "option" of giving plaintiff an "opportunity to correct" the breaching condition giving rise tothe suspension. Upon failure to cure the breach, the account may be terminated "after a period ofsuspension."
On November 11, 2007, plaintiff concededly breached the agreement by failing to timely payWeb site hosting fees. On the afternoon of Friday, November 16, plaintiff received a voicemessage from one of defendant's employees advising him that his "account is due to renew; butwe have not received payment on it. So, to avoid any interruption to your service, please give mea call back." Plaintiff alleges that he promptly returned the call and left a voice message statingthat he would be mailing the payment and that defendant would receive it no later than Tuesday,November 20, 2007.
On the morning of Monday, November 19, plaintiff learned that his Web site had beensuspended and was nonfunctional. Plaintiff was distressed and left defendant an "angry" voicemessage, using an obscene word to threaten to sue defendant if his Web site was not reactivated.That afternoon, defendant's corporate secretary called plaintiff and informed him that, because ofhis "angry message," defendant would not reactivate his Web site, and defendant would returnany [*2]checks received from plaintiff. Plaintiff also alleges that,following the suspension, he repeatedly attempted to retrieve his Web site files, but that the linksprovided by defendant were not functional.
On November 30, 2007, defendant sent plaintiff a letter recapping the parties' dispute andadvising him that his account had been suspended since November 19 because of the lack ofpayment and that defendant had decided to terminate plaintiff's account, effective December 5,2007, because of the suspension and the violation of the AUP.
Presuming plaintiff's allegations to be true and according them the benefit of every possibleinference (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144,151-152 [2002]), plaintiff has failed to state a cause of action for breach of contract. Plaintiffconcedes that he was in breach of the contract for failure to render timely payment. Plaintiff'sargument that defendant waived the provisions of the agreement which required timely paymentis raised for the first time on appeal, and we decline to consider it.
Plaintiff's appeal from the dismissal of his five other causes of action has been abandonedsince he failed to address the claims in his brief (see Batas v Prudential Ins. Co. of Am., 37 AD3d 320, 321 n 1[2007]). To the extent that plaintiff attempts to address these claims for the first time in his replybrief, they are also not entitled to consideration (see Duane Morris LLP v Astor Holdings Inc., 61 AD3d 418, 419[2009]). Were we to review these claims, we would find that they were properly dismissed bythe motion court. Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick andAbdus-Salaam, JJ. [See 2009 NY Slip Op 30521(U).]