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Niedernhofer v. Wittels

Absent Agreement, Communications on Website and Via Email Could Satisfy Statute of Frauds

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OPINION & ORDERPlaintiff, John Niedernhofer (“Plaintiff”), commenced this action on June 13, 2017 against Neal Wittels (“Defendant”), regarding the sale of a 1958 Lancia Aurelia B24S convertible (the “Lancia Car”). (See Compl., ECF No. 1.) Plaintiff alleges seven causes of action, including: (1) rescission; (2) breach of express warranty; (3) fraudulent misrepresentation; (4) fraudulent concealment; (5) negligent misrepresentation; (6) breach of good faith and fair dealing; and (7) unjust enrichment (See Id.) Before the Court is Defendant’s motion to dismiss Plaintiffs Complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 18.) For the following reasons, Defendant’s motion to dismiss is DENIED.Background¹Bring a Trailer Media LLC (“BAT”) manages and operates a website (http://bringatrailer.com) dedicated to facilitating sales of motor vehicles between private sellers and third parties. (Id.9.) In 2015, Defendant provided a description of a 1958 Lancia B24S convertible (the “Lancia Car”) to BAT in an effort to sell the vehicle on their website. (Id.

12, 15.) The description stated, among other things, that the Lancia Car had no leaks and had a full restoration completed in 2009 costing over $100,000. (Id.16.) Defendant further represented that since its restoration, the Lancia Car had only been driven about 100 miles. (Id.) BAT placed this information in an advertisement to the website’s visitors, along with approximately seventy photos of the car. (Id.15.) The online auction for the Lancia Car was opened on December 15, 2015 and visitors were able to place bids for a period of seven days. (Id.

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