Plaintiff, a model and actor, entered into a "Talent Agreement" on May 29, 2008, through defendant Ingrid Schmerling d/b/a Meredith East Model Agency^[FN1] ("Meredith"), with Blue Moon Studios, Inc. ("Blue Moon"). Pursuant to the Talent Agreement, plaintiff participated in an infomercial for the Microforce razor, for which he was compensated approximately $1500.00. Plaintiff, who asserts that the agreement was only for one year, discovered that, after the expiration of the agreement, his image was still being used in "television commercials, on the internet, and on packaging of products being sold in New York State and throughout the country."

Defendant Spark Innovators, Inc ("Spark"), a New Jersey Company, is the manufacturer the Microforce Razor. Defendant Idea Village Products Corp. ("Idea"), also a New Jersey based company, is the developer and marketer of several "As Seen on TV" products. In August 2008, Spark entered into an exclusive "License [*2]Agreement" with Idea to distribute the Microforce product "through all channels of trade including but not limited to TV, retail, web [and] catalog . . ." Defendants Time Warner Cable, Inc. and Viacom, Inc. ("Viacom") are alleged to have aired the commercials bearing plaintiff's image after the expiration of plaintiff's contract with Blue Moon.

Plaintiff originally commenced this action for violation of §§50-51 of the New York Civil Rights Law, breach of contract, fraud; and unjust enrichment. Plaintiff subsequently amended his complaint and alleged only a violation of §§50-51 of the New York Civil Rights Law.

Previously, Spark, Blue Moon and Idea moved to dismiss the complaint pursuant to 3211(a)(7) & (8). By Order of this Court, dated September 21, 2010, the action was dismissed as against Blue Moon only. The Court denied the motion as to Idea, and as to Spark, "without prejudice to renew upon the completion of limited discovery on the issue of whether or not the court has personal jurisdiction over Sparks." In opposition to Spark's original motion to dismiss, plaintiff submitted a color photocopy of packaging for the MicroForce shaver that he purchased at a New York CVS Pharmacy. The Court found that plaintiff had made a "sufficient start" in showing that jurisdiction exists over Spark. Spark now renews its motion to dismiss pursuant to CPLR 3211(a)(8). Plaintiff opposes. Neither TWC nor Viacom submit papers.

Spark, in support of its motion, submits: a license agreement between it and Idea; the affidavit of Raj Khubani, President of Spark; and the affidavit of Lori Ann Lombardo, Vice President of Idea. Spark argues that it is just a small company in New Jersey with one employee, and, pursuant to its License Agreement with Idea, Idea is merely an independent contractor who has sold the product to New York Stores.

Plaintiff, in opposition, first argues that the motion should be denied because Spark has failed to respond to plaintiff's April 8, 2011 discovery demands. Plaintiff also argues that the motion should be denied on the merits because the License Agreement does not "shield" Spark from liability, but rather confers jurisdiction on Spark because of the level of control Spark maintains over Idea.

CPLR 3211 (a)(8) states: [*3]

Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:

(8) the court has not jurisdiction of the person or defendant.

On a 3211 motion to dismiss, jurisdictional allegations must be viewed in a light most favorable to the plaintiff, and all doubts resolved in his favor,(see MediaXposure Ltd. (Cayman) v. Omnireliant Holdings, Inc, 29 Misc 3d 1215(A)[Sup. Crt. NY County 2010]). Here, plaintiff contends that, although he is entitled to further discovery, the Licensing Agreement itself is proof that this Court has jurisdiction over Spark pursuant to CPLR 302(a)(1). CPLR 302(a)(1) states:

(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent:

(1) transacts any business within the state or contracts anywhere to supply goods or services in the state.

"So long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there, due process is not offended if that party is subjected to jurisdiction even if not present in that State." (Barbarotto Intl. Sales Corp. v. Tuller, 188 AD2d 503[2nd Dept. 1992])(citing to International Shoe Co. v. Washington, 326 US 310[1945]).

The activities of a representative of a nondomicilliary in New York may be attributable to it . . . if it requested the performance of those activities and the activities benefit it, regardless of whether the representative acted as an agent or an independent contractor . . ." (Barbarotto at 504). Indeed, plaintiff need not establish a "formal agency relationship" between Spark and Idea. Rather, he must show only that Idea "engaged in purposeful activities in this State in relation to his transaction for the benefit of and with the knowledge and consent of [Spark] and that [Spark] exercised some control over [Idea] in the matter." (Kreutter v. McFadden Oil Corp., 71 NY2d 460,467[1988]). [*4]

The agreement makes clear that Idea will sell the Microforce product, with Spark's knowledge and consent, to any geographic location "throughout the world," which would logically include New York. Such sales will indisputably benefit Spark, as Idea must pay it 25% of domestic net profits from Retail sales. As to the control element, Section (1)(b) of the agreement states that Idea has no right to "market or distribute the Product other than to Authorized Retail Accounts in accordance with the terms of this Agreement." The agreement also requires that:

Idea Village agrees that Spark Innovators name in conjunction with Idea Village's will be provided to all retailers, wholesalers, and catalogs in relation to all aspects of the account for the Product. Spark Innovators name will remain on the packaging, marketing/advertisements, including but not limited to the commercial for the product.

In Section 5(e), Quality Control, it states:

In order to ensure that all proposed uses of the Trademark are in compliance with the specifications and requirements prescribed by Spark, Idea Village shall send SPARK such samples of any packaging, advertising, or other promotional materials associated therewith as SPARK may reasonably require for the purpose of allowing SPARK to verify that such samples conform to such specifications and requirements . . . In addition, IdeaVillage shall permit duly authorized representatives or agents of SPARK during normal business hours to visit IdeaVillage's premises . . .

Spark maintains tight control over the packaging and advertising of the Microforce razors. The alleged misuse of plaintiff's image on the packaging is the very "matter" which is at issue here. Indeed, Idea could not have used plaintiff's image on, for example, the Microforce razor that was purchased in New York, unless Spark approved of it first. Nor could the razor have been sold to a New York CVS unless it was an "Authorized Retail Account," pursuant to the Licensing Agreement.

Wherefore it is hereby

ORDERED that the motion to dismiss is denied; and it is further [*5]

ORDERED that the parties shall appear for a compliance conference on Tuesday September 20, 2011 at 9:30 a.m. in Room 308 at 80 Centre Street.

DATED: August 4, 2011______________________________EILEEN A. RAKOWER, J.S.C.