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Smith v. Zeeky Corp.

May 7, 2010


The opinion of the court was delivered by: Robert F. Kelly, Sr. J.


Presently before this Court is the unopposed "Motion for Judgment on the Pleadings and/or Summary Judgment" filed by Defendants Zeeky Corporation ("Zeeky") and Oscar Zatz ("Zatz") (collectively, "Defendants" or "Zeeky and Zatz"). For the reasons set forth below, the Motion will be granted.


On September 18, 2009, Plaintiff J.W. Sporty Smith, Jr. ("Smith"), acting pro se, filed his Motion to Proceed In Forma Pauperis. On September 28, 2009, Smith's "Petition for Damages" was filed. On that same date, Plaintiff's Petition was dismissed without prejudice pursuant to Neitzke v. Williams, 490 U.S. 319, 327 (1989). In our Order dismissing Smith's Petition, we afforded Smith twenty days to amend his Petition, "clearly specifying the Defendants who, he alleges, committed the acts or omissions at issue." (September 28, 2009 Order ¶ 2.) On October 12, 2009, Smith filed his "First Amended Petition for Damages." On October 27, 2009, the Court held a hearing at which Smith appeared with financial documentation supporting his Motion to Proceed In Forma Pauperis. As a result of the hearing, we granted Smith's Motion and ordered that Smith's Complaint be filed against Zeeky and Zatz only.

Smith's Complaint asserts the following claims against Defendants: (1) a violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (the "FDCPA") (Count I); (2) Invasion of Privacy by Intrusion upon Seclusion (Count II); (3) Breach of Contract (Count III); (4) Justifiable Reliance (Count IV); (5) Libel and Slander (Count V); (6) Breach of Duty of Good Faith and Fair Dealing (Count VI); (7) Fraud (Count VII); (8) Unjust Enrichment (Count VIII); (9) Unfair Trade Practices (Count IX); (10) Deceit (Count X); (11) Punitive Damages (Count XI); and (12) Attorney Fees and Court Costs (Count XIII).*fn1 In his Complaint, Smith alleges that on or around January 28, 2009, he entered into an agreement to purchase real estate*fn2 from Zeeky, Zatz and numerous individuals and entities that have been dismissed from this action (collectively, the "Original Defendants"). (Pl.'s Compl. ¶ 1.) Smith asserts that the parties executed a letter of intent in connection with the real estate transaction and that "[p]ending the resolutions of the zoning issues by Defendants and the closing of the property acquisition, it was agreed that Smith would take occupancy of the Property for the purpose of cleaning it, renovating it and furnishing it in preparation for use by and in his business." (Id. ¶¶ 2-12.) He further alleges that he provided the Original Defendants with $2,500 in return for keys to the property at issue. (Id. ¶¶ 13-14.)

Smith asserts that on or about February 24, 2009, in reliance on the agreement and on the Original Defendants' promises, he took possession of the property, began cleaning and renovating it and transferred some of the utilities to his name. (Id. ¶¶ 15-17.) Smith further claims that he "acquired furnishings, furniture and equipment to furnish the Property and set up his business in the Property, well over $30,000.00 and $20,000.00 to clear violations." (Id. ¶ 18.)

Smith states that on or about April 24, 2009, the Original Defendants "informed Smith that the zoning changes would cost Defendants too much to affect and inquired whether Smith would waive same . . . ." (Id. ¶ 19.) Smith claims that he "reiterated that the zoning changes were needed and asked that Defendants act with deliberate speed to address same." (Id. ¶ 20.) However, Smith asserts that despite his repeated demands, the Original Defendants never effectuated the zoning changes. (Id. ¶ 21.) Nevertheless, he maintains that although the zoning changes were not made, he continued to improve the property and pay its property taxes and utilities bills. (Id. ¶¶ 22-23.)

Smith contends that on or about July 8, 2009, counsel for the Original Defendants sent him a notice to vacate the property by July 18, 2009 or "face eviction for non-payment of rent." (Id. ¶¶ 24-25.) Finally, Smith alleges that two days prior to the July 18th deadline, the Original Defendants locked him out of the property and refused to allow him to retrieve his personal items, furniture, equipment, furnishings and decorations. (Id. ¶¶ 26, 29.)

On March 1, 2010, Defendants filed the instant Motion. In their Motion, Defendants assert that Zatz formed Zeeky to own the commercial building at issue. (Defs.' Mot. for J. on the Pleadings and/or Summ. J. at 1.) Defendants state that "Zeeky does not engage in, and has never engaged in, any debt collection activities on behalf of any third party. Neither does Oscar Zatz, personally. Zeeky and Oscar Zatz also do not regularly engage in the debt collection business." (Id. at 2.) Defendants assert that through Louis A. Petro ("Petro"), Zeeky entered into a listing contract with Coldwell Bankers Commercial Diamond-Elite Realtors, to either sell the property or lease it for Zeeky. (Id.) Defendants claim that in 2008, Smith approached Petro and expressed an interest in either buying or leasing the property for the purpose of operating a sports bar. (Id.) Defendants allege that "[a]ny agreement between plaintiff[]. . . and Zeeky[]. . . in connection with the Property, would 'require further documentation and approvals, including the preparation and approval of a formal agreement setting forth the terms and conditions of the proposed lease/purchase in more detail (the 'Purchase Agreement').'" (Id. at 2-3.) Defendants assert, however, that no Purchase Agreement was ever prepared or signed by Smith or by Zeeky. (Id. at 3.) Rather, Defendants claim that "[s]everal drafts of a Lease Agreement or Purchase Agreement were prepared, through Coldwell Banker, but plaintiff and Zeeky never reached a meeting of the minds as to a final, signed agreement for Smith to lease or rent the Property." (Id.)

Regarding Smith's claim under the FDCPA, Defendants state that all of the utilities services for the property have been in Zeeky's name during the entire time which Zeeky has owned the property. (Id.) Defendants claim that "[a]s part of the agreement being negotiated with plaintiff, the plaintiff was supposed to be responsible to [sic] for payment or reimbursement to Zeeky Corporation of the utilities and taxes." (Id. at 3-4.) Defendants allege, however, that Smith never paid for any of the utilities services or taxes at the property, but rather, they were all paid by Zeeky. (Id. at 4.) Therefore, Defendants assert that "[t]he debts upon which plaintiff bases his claims in his Complaint (rent, utilities, and taxes) would be direct obligations that plaintiff would have owed to Zeeky Corporation, in connection with plaintiff's usage of the Property -- Zeeky Corporation would be the creditor to whom those debts were owed." (Id. at 3.) Finally, Defendants state that because Smith admits in his Complaint that he began setting up his business in the commercial building, his usage of the property was for a business purpose rather than a "consumer debt." (Id. at 4.)

The Certificate of Service attached to Defendants' Motion indicates that on March 1, 2010, the Motion had been served via first-class mail to Smith himself, notwithstanding the fact that on February 19, 2010, Edward B. Mendy, Esq. ("Mendy") entered a notice of appearance in this case on behalf of Smith. Therefore, on March 22, 2010, the Court contacted counsel for Smith as well as for Defendants. Mendy requested that the Court grant him seven additional days in which to respond to the Motion, a request which counsel for Defendants did not oppose. We granted Mendy's request. Mendy, however, did not file a response to the Motion, but rather, filed an untimely Answer to Defendants' Counterclaims.

On April 8, 2010, the Court attempted to contact Mendy in order to set up a status conference with both attorneys over the telephone. However, Mendy could not be reached either at the telephone number entered on the docket (apparently Mendy's home number) or the telephone number he provided in his Answer (his ostensible "office" number). The Court's clerk left a voicemail message for Mendy at his office number, but Mendy did not return the call. On April 14, 2010, the Court's clerk again attempted to contact Mendy in order to arrange a conference, but Mendy could not be reached at either number. A voicemail message was left at Mendy's office number, but again, was not returned. On April 16, 2010, the Court's clerk left another voicemail message for Mendy at his office number, as well as a message with an individual at the home number, but Mendy did not return either call. To date, Mendy has not filed a response to Defendants' Motion, nor has he responded to the Court's communications.


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