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D'Agostino v. Ebay, Inc.

Superior Court of New Jersey, Appellate Division

September 13, 2013

STEVEN D'AGOSTINO, Plaintiff-Appellant,
v.
EBAY, INC., Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 26, 2013

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Ocean County, Docket No. SC-0349-12.

Steven D'Agostino, appellant, argued the cause pro se.

Duvol M. Thompson (Holland & Knight, LLP) argued the cause for respondent.

Before Judges Alvarez and Maven.

PER CURIAM

Plaintiff Steven D'Agostino appeals from a May 16, 2012 Special Civil Part order dismissing his complaint after trial on the basis that he had no cause of action against defendant eBay, Inc. (eBay). D'Agostino also appeals the subsequent denial of his Rule 4:49-1 motion for a new trial. For the reasons that follow, we affirm.

We glean the following circumstances from the testimony and exhibits presented during the trial. D'Agostino, who for years had sold merchandise on eBay's internet sales site, posted his 1999 Subaru Outback wagon for auction. He said in the "Notes" appended to the listing:

I also had the car listed locally on Craigslist for $1, 500, so I do reserve the right to end the auction early if it sells, but truthfully, the odds of that happening are very slim as all the local people on Craigslist around here are total cheapskates.
The car's interior is kind of dirty at the moment, needs to be vacuumed, but if the winning bid is over $1, 500, I will definitely clean it inside and out for you. Last note: if the car sells for $500 or less, I'm taking the CD player out and selling it myself separately.

D'Agostino could have set a reserve price but did not; he could have refused to sell the vehicle if unsatisfied with the sales price. Instead, he sold the car for $711.25.

D'Agostino posted the auction listing for the car on Sunday, September 18, 2011, ending on Sunday, September 25. On Saturday, September 24, when he tried to revise the posting, the change resulted in the photographs being moved far down the screen to an area of the listing where, in his opinion, it was unlikely that they would be seen. That same day, D'Agostino contacted eBay's customer service department, which promised to resolve the problem within twenty-four hours. It was not resolved before the sale posting ended.

After the sale, D'Agostino contacted eBay, complaining that the listing and the photographs of the Subaru had become separated. He was dissatisfied with the sale price, and attributed it to the flawed posting. EBay's customer service representative offered him partial credit towards the outstanding $60 auction fee. When D'Agostino declined the offer, he was told to communicate with the dispute resolution department. He promptly wrote a letter regarding his concerns but received no response. After a couple of ...


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