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INTERNET FRAUD AND BREACH OF CONTRACT PLAINTIFF ATTORNEY DEFRAUDED BY MEMORABILIA MANUFACTURERS COMPENSATORY AND PUNITIVE DAMAGES INQUEST Anthony T. Ballato v. Icons Authentic Replicas, Inc.; Icons Classics, Inc.; eicons.com; Never Were Toys; and James Latta 020357/99

Settlement:   $68,686 (6/0). Breakdown: $42,000 for compensatory damages; $25,000 for punitive damages; $1,686 for costs and disbursements.
Case #:   XVII/27-42
Date:   Monday, December 06, 1999
Court:   Nassau Supreme
Plaintiff Attorney:   Pro Se
Plaintiff Expert:   Plaintiff was qualified to act as his own expert in the subject field of collectibles.
Facts:   In March 1999, Pltf. Pro Se, an attorney and memorabilia collector, placed a written order via facsimile with Deft. seller, Icons Authentic Replicas, Inc., to purchase a full-sized and accurate reproduction of the Lost In Space robot, known as B-9 in the 1960s Irwin Allen television series of the same name. Pltf. claimed that his acceptance of the cost of $8,000 for the 7-foot-tall robot and $449 for a miniature Jupiter 2 Space Ship was based upon his reliance upon Defts. impressive color catalog, other representations, and website ads. Deft. seller thereafter billed Pltf. s credit card for the full amount of the merchandise. Pltf. contended, however, that the charges were assessed prematurely, before the collectibles were ever manufactured or shipped.

Pltf. sent Defts. various telephone, facsimile, and certified mail demands, all of which sought adequate assurances of performance and delivery of the merchandise. He claimed that Defts. failure to provide such assurances or to deliver the merchandise confirmed its breach of the contract under Article 2 of the Uniform Commercial Code, ùù2-609 and 2-711. In addition, Pltf. put Defts. on notice that unless they specifically performed the subject contracts under UCC ù2- 716 and promptly furnished the goods, he would seek to make a cover purchase, as well as a recovery of other and further actual and consequential damages for breach of contract and fraud (UCC ùù2-711, 2-712, 2-713, 2-715, 2-721, and 2-723).

Pltf. successfully had his credit card company suspend and reverse Defts. improper charges, but he was unable to procure the collectibles (presumably due to non-existence). Pltf. contended that upon further investigations and communications with other customers of Defts., he found that there were dozens of other claims pending against Defts. in California, with the Offices of the Better Business Bureau and the Attorney General; he also discovered several lawsuits for similar claims. Pltf. alleged that Defts. were procuring orders and monies for goods that they either did not possess or were incapable of producing, and claimed that Defts. were guilty of defrauding himself and the public at large. His information was confirmed by other collectors across the country, as well as by other lawsuits in California that alleged fraud, property transfers, and/or commingling of funds between Deft. owner Latta and several other corporations.

When Defts. defaulted and failed to appear or to submit any answers, Pltf. re-served the pleadings personally upon Deft. Latta and further served notices of default. Thereafter, Pltf. s motion for a default judgment on notice was granted, and an inquest was scheduled for 12/6/99. Pltf. appeared at the call of the TAP 2 Calendar for both the first and second call, for which Defts. again failed to appear, and Pltf. was directed for an immediate inquest before Justice DeMaro, who found that Pltf. proved breach of contract and fraud on the part of all five Defts. Demonstrative evidence: Deft. s color catalog and faxes to Pltf.; internet and catalog advertisements showing costs of similar goods; Pltf. s cover purchase of a life-sized 7œ-foot Robby the Robot replica from the 1956 movie Forbidden Planet for $15,000 plus $690 for shipping; magazine articles; correspondence of injuries to third parties and Pltf. by Defts. fraud. No offer; demand: Pltf. demanded the specific performance of the contracts or the sum of $250,000 plus punitive damages.

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