Justice Carolyn Demarest
The consolidated actions alleged that several luxury motor vehicles were purchased from The Auto Collection (TAC) by an import-export company in the business of buying motor vehicles and reselling them for export. TAC demanded pre-payment, the purchaser pre-paid, and the vehicles were never delivered nor was the purchase price refunded. TAC argued its employee, defendant Christopher Pinkow, defrauded TAC and its members without their knowledge or participation. TAC alleged that Pinkow and the auto exporters created a scheme to defraud TAC through a pattern of racketeering activities. TAC submitted deposition testimony from Pinkow’s father, indicating he was working for the auto exporters as TAC was ceasing operations. Auto exporters moved to dismiss and provided a single forty-five page affidavit that the court found did not actually deny the allegations in TAC’s complaint or address their alleged relationship with Pinkow. The court also found that the affidavit contained significant hearsay and analysis of documents and deposition testimony without any apparent personal knowledge as to a number of the documents and events. Thus the motion to dismiss the breach of fiduciary claim was denied.
