TRZUSKOT v. JOHNSON (2026)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about April 23, 2024, which granted defendant tZERO Group, Inc's motion to dismiss the first amended complaint;  denied plaintiff's cross-motion for various relief including for leave to renew her motion for a default judgment against tZERO, defendant Bitt.com, Inc., and defendant Beyond, Inc. (formerly Overstock.com) (Overstock);  denied plaintiff's further motion for a default judgment;  and granted Overstock's motion to dismiss the second amended complaint, unanimously affirmed.  Appeal from aforementioned order, unanimously dismissed, without costs, as taken from a nonappealable paper to the extent it denied plaintiff's motion to reargue.

The court providently exercised its discretion in denying plaintiff's motion to renew her motion for a default judgment against tZERO and Overstock.  Plaintiff relied only on evidence previously submitted and failed to allege “new facts or information which could not have been readily and with due diligence made part of the original motion” (MB Fin. Bank, N.A. v. 56 Walker LLC, 238 A.D.3d 605, 605, 232 N.Y.S.3d 149 [1st Dept 2025] [internal quotation marks omitted];  see CPLR 2221[e] ).  The court properly denied plaintiff's successive motion for a default judgment against tZERO and Overstock because it was duplicative both of her prior motion, which was already decided against her in a prior order (see Komatsu v. New York City Human Resources Admin., 195 A.D.3d 417, 418, 144 N.Y.S.3d 574 [1st Dept 2021], appeal dismissed 37 N.Y.3d 1158, 160 N.Y.S.3d 726, 181 N.E.3d 1154 [2022] ), and of her motion to renew.

In any event, plaintiff's claims for sexual harassment and negligent supervision and hiring were barred by the three-year statutes of limitations (see CPLR 214;  Mejia v. T.N. 888 Eighth Ave. LLC Co., 169 A.D.3d 613, 614, 95 N.Y.S.3d 168 [1st Dept 2019];  Green v. Emmanuel African M.E. Church, 278 A.D.2d 132, 132, 718 N.Y.S.2d 324 [1st Dept 2000] ).  The claims do not relate back to the original complaint because plaintiff fails to establish Overstock is “united in interest with the original defendant,” Carl Johnson, or that tZERO “knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against [it] as well” (Stanger v. Shoprite of Monroe, NY, 180 A.D.3d 408, 409, 119 N.Y.S.3d 130 [1st Dept 2020] [internal quotation marks omitted] ).  Plaintiff abandons her claim for breach of contract against tZERO (see Hardwick v. Auriemma, 116 A.D.3d 465, 468, 983 N.Y.S.2d 509 [1st Dept 2014], lv denied 23 N.Y.3d 908, 2014 WL 2936031 [2014] ).

The court properly dismissed the second amended complaint for lack of personal jurisdiction as against Overstock, which is incorporated in Delaware and has its principal place of business in Utah (see CPLR 301;  Brocco v. Eastern Metal Recycling Terminal LLC, 211 A.D.3d 628, 628, 181 N.Y.S.3d 535 [1st Dept 2022] ).  To the extent plaintiff seeks to prove personal jurisdiction over Overstock based on its ownership of New York-based tZERO, plaintiff fails to establish that Overstock's “control over [tZERO's] activities is so complete that [tZERO] is ․ merely a department of” Overstock (FIMBank P.L.C. v. Woori Fin. Holdings Co. Ltd., 104 A.D.3d 602, 602–603, 962 N.Y.S.2d 114 [1st Dept 2013] [internal quotation marks omitted] ).

The second amended complaint also fails to allege that Overstock purposefully availed itself “of the privilege of conducting activities” in New York or the existence of “a substantial relationship” between its New York contacts and plaintiff's claims (Paterno v. Laser Spine Inst., 24 N.Y.3d 370, 376, 998 N.Y.S.2d 720, 23 N.E.3d 988 [2014] [internal quotation marks omitted] ).  Plaintiff's claims generally arise out of Johnson's conduct, and plaintiff seeks to hold Overstock liable as his former employer.  However, Johnson's employer when he was in New York was tZERO, not Overstock.  Plaintiff also fails to establish personal jurisdiction over Overstock based on Johnson's New York conduct as Overstock's alleged agent (see Coast to Coast Energy, Inc. v. Gasarch, 149 A.D.3d 485, 486–487, 53 N.Y.S.3d 16 [1st Dept 2017] ), or based on tortious conduct committed outside the state (see CPLR 302[a][3] ).

The court's order directing plaintiff to seek leave of court before filing additional motions was justified by plaintiff's repeated efforts to relitigate issues already decided and failure to heed the court's cautions against doing so (see Banushi v. Law Off. of Scott W. Epstein, 110 A.D.3d 558, 558, 973 N.Y.S.2d 198 [1st Dept 2013] ).  The court did not abuse its discretion in sanctioning plaintiff for pursuing additional relief against Patrick Byrne, whom the court had previously dismissed as a defendant, or for pursuing previously rejected arguments against Johnson (see 22 NYCRR 130–1.1[a];  Solomon v. 360 E. 72d St. Owners Inc., 244 A.D.3d 461, 463, 246 N.Y.S.3d 351 [1st Dept 2025] ).

We have considered plaintiff's additional arguments and find them unavailing.