# Quinn v. QVC Group, Inc.

> New York Supreme Court, New York County · February 24, 2026 · 2026 NY Slip Op 30683(U)

URL: https://www.frixlaw.com/law-library/cases/11279491

## Case

- **Court:** New York Supreme Court, New York County
- **Decided:** February 24, 2026
- **Citations:** 2026 NY Slip Op 30683(U)
- **Precedential status:** Unpublished
- **Opinion:** Opinion by Nicholas W. Moyne
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Quinn v QVC Group, Inc.
2026 NY Slip Op 30683(U)
February 24, 2026
Supreme Court, New York County
Docket Number: Index No. 652440/2025
Judge: Nicholas W. Moyne
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.6524402025.NEW_YORK.001.LBLX038_TO.html[03/09/2026 3:45:57 PM]
FILED: NEW YORK COUNTY CLERK 02/25/2026 12:56 PM INDEX NO. 652440/2025
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 02/24/2026

SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. NICHOLAS W. MOYNE PART 41M
Justice
---------------------------------------------------------------------------------X INDEX NO. 652440/2025
MICHAEL QUINN,
07/11/2025,
Plaintiff, MOTION DATE 08/14/2025

-v- MOTION SEQ. NO. 001 002

QVC GROUP, INC.,OLD WORLD PROVISIONS, INC,
ROSS SHUKET, CHRISTINA PENNYPACKER, JOHN
DECISION + ORDER ON
DOES 1-10, ABC CORPS 1-10
MOTION
Defendant.
---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10,
11, 12, 13
were read on this motion to/for DISMISS .

The following e-filed documents, listed by NYSCEF document number (Motion 002) 15, 16, 17, 18, 19,
20, 21, 22, 23, 24
were read on this motion to/for DISMISS .

Upon the foregoing documents, it is

The plaintiff Michael Quinn (“Plaintiff” or “Quinn”) commenced this action
seeking damages for breach of contract, tortious interference, and various other
claims arising from the sale of his hot dog brand, "Feltman’s of Coney Island," to
the defendant Old World Provisions, Inc. (“OWP”) and the subsequent alleged
interference by the defendants QVC Group, Inc. (“QVC”) and Christina
Pennypacker (“Pennypacker”).

There are two motions currently pending before the Court. In Motion
Sequence 001, the defendants OWP and Ross Shuket move to dismiss the
complaint pursuant to CPLR §§ 3211(a)(1) and (a)(7). In Motion Sequence 002,
the defendants QVC and Christina Pennypacker move to dismiss pursuant to CPLR
§§ 3211(a)(1), (a)(7), and (a)(8).
FACTUAL BACKGROUND

The Court accepts the following factual allegations in the complaint as true
for the purposes of these motions. The plaintiff Quinn was the owner of Feltman’s

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Management HoldCo., LLC, a specialty hot dog company. On or about January 24,
2023, Quinn sold the company and all of its intellectual property to the defendant
OWP pursuant to an Asset Purchase Agreement (“APA” or “Contract”) [NYSCEF
Doc. No. 17 at ¶¶ 6, 41]. Under the APA, Quinn was to receive royalties for a
period of seven years based on sales: $0.20 per pound of protein products for the
first two years, $0.15 per pound for the remaining five years, and 5% of net sales
for other products [Id. at ¶ 41; NYSCEF Doc. No. 7 at 4]. The plaintiff alleges
these royalties were the sole consideration provided by OWP in exchange for the
purchase of Feltman’s. [NYSCEF Doc. No. 10 at 4].

Prior to the sale, the plaintiff had successfully marketed the brand through
appearances on QVC, generating over $721,000 in sales in three segments
[NYSCEF Doc. No. 17 at ¶¶ 7, 17]. However, on or about June 7, 2023, the
plaintiff claims that he became the target of a cyberbullying campaign due to his
association with a neurodivergent social media influencer, Joshua Block [Id. at ¶¶
14, 20]. Certain individuals online claimed that the plaintiff was taking advantage
of disabled people and was exploiting Block and his autism for personal and
financial gain [Id. at ¶19]. These individuals contacted QVC and made knowingly
false allegations against Quinn [Id. at ¶ 22].. In response, QVC, through its
employee defendant Christina Pennypacker, cancelled all of Quinn's scheduled
appearances and demanded that OWP sever all ties with Quinn. Specifically,
Pennypacker allegedly emailed OWP executive Ross Shuket stating, "Feltman’s
will never appear on QVC as long as Michael Quinn is affiliated with it" [Id. at ¶
94]. Shuket subsequently demanded Quinn delete his social media presence
regarding the brand [Id. at ¶ 27]. The plaintiff alleges that as a result of these
actions, OWP ceased marketing the products and withdrew the product from 6,000
retail locations. As a result, sales plummeted, resulting in royalty payments to the
plaintiff of less than $500 in 2024 [Id. at ¶¶ 44-45].
The APA contains a clause that the plaintiff refers to as a “sunset provision.”
The sunset provision refers to the expiration of the "Deferred Payment Period" as
defined in the APA. Under the terms of the deal, the plaintiff transferred full
ownership of the Feltman’s brand and intellectual property to OWP in exchange
for the royalty payments as set forth above. The royalty payments are contractually
limited to a period of seven (7) years commencing on the closing date (January 24,
2023) and ending in 2030 [NYSCEF Doc. No. 7 at 2, § 2.2.1]. The plaintiff argues
that this seven-year limitation is critical to his claims for breach of contract, unjust
enrichment, and fraud for several reasons. The plaintiff maintains that because
there was no upfront payment and royalties were the sole consideration, the sunset
provision allowed OWP to acquire a valuable company for pennies on the dollar

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(or effectively nothing) if they simply refuse to properly market the product until
2030. Once the seven-year period expires, OWP retains full ownership of the trade
secrets, recipes, and intellectual property, but owes the plaintiff no further
compensation. The plaintiff argues that this gave OWP incentive to cease all of
their marketing efforts and prevent the plaintiff from undergoing any marketing
efforts until the royalty payment period under the APA expired. Essentially, the
plaintiff argues he was at the mercy of the defendants, creating a legal necessity for
this Court to intervene to prevent the contract from being unconscionable or
illusory.

DISCUSSION

Motion Sequence 001
In motion sequence 001, the defendants OWP and Shuket move to dismiss
pursuant to CPLR §§ 3211 (a)(1) and (a)(7). The defendants claim the cause of
action asserted against them in the complaint are conclusively rebutted by
documentary evidence and/or fail to state a cognizable claim. For the reasons
stated below, the motion is granted in part and denied in part.
Under CPLR 3211 (a) (7), the movant has the burden to demonstrate that the
complaint, construed liberally in favor of the plaintiff, states no legally cognizable
cause of action (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v
Mut. Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]. Plaintiff is accorded “the
benefit of every possible favorable inference” (Goshen, 98 NY2d at 326 [internal
quotation marks and citation omitted]). “Whether the plaintiff will ultimately be
successful in establishing [its] allegations is not part of the calculus” (Greystone
Funding Corp. v Kutner, 121 AD3d 581, 583 [1st Dept 2014] [internal quotation
marks and citation omitted]).

“When documentary evidence is submitted by a defendant ‘the standard
morphs from whether the plaintiff has stated a cause of action to whether it has
one’ ” (Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d
128, 135 [1st Dept 2014]). On a “CPLR 3211 (a) (1) motion to dismiss on the
ground that the action is barred by documentary evidence, such motion may be
appropriately granted only where the documentary evidence utterly refutes
plaintiff's factual allegations, conclusively establishing a defense as a matter of
law” (Goshen, 98 NY2d at 326; see also Art & Fashion Group Corp. v Cyclops
Prod., Inc., 120 AD3d 436, 438 [1st Dept 2014]).

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“In order to prevail on a CPLR 3211 (a) (1) motion, the documents relied on
must definitively dispose of plaintiff's claim” (Blonder & Co., Inc. v Citibank,
N.A., 28 AD3d 180, 182 [1st Dept 2006]). “If the documentary proof disproves an
essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (1) is
warranted even if the allegations, standing alone, could withstand a motion to
dismiss for failure to state a cause of action” (Kolchins v Evolution Mkts., Inc., 128
AD3d 47, 58 [1st Dept 2015], affd 31 NY3d 100 [2018]). “Judicial records, such as
judgments and orders, would qualify as ‘documentary,’ as should the entire range
of documents reflecting out-of-court transactions, such as contracts, deeds, wills,
mortgages, and even correspondence” (Amsterdam Hospitality Group, LLC v
Marshall-Alan Assoc., Inc., 120 AD3d 431, 432 [1st Dept 2014] [internal quotation
marks and citations omitted]).
The first cause of action is for breach of contract. The plaintiff alleges OWP
breached the APA by failing to properly market and sell Feltman’s products,
thereby destroying his royalty stream. OWP argues the APA contains a merger
clause (§ 21.12) and no explicit requirement to market or sell the product
[NYSCEF Doc. No. 5 at ¶ 5]. Contracts and their terms, including merger clauses
such as that in the APA, are the kind of documentary evidence properly considered
on a motion to dismiss pursuant to CPLR § 3211(a)(1), and such a merger clause
can warrant granting a motion dismissing claims for breach of contract, breach of
fiduciary duty and/or fraud where the plaintiff’s allegations are clearly precluded
by the merger clause and/or barred by the parol evidence rule (see Denenberg v
Schaeffer, 137 AD3d 1197, 1198 [2d Dept 2016]; SNS Bank, N.V. v Citibank, N.A.,
7 AD.3d 352, 354 [1st Dept 2004]).
This case however involves an APA, wherein royalty payments were the
sole consideration received by the plaintiff, in exchange for the sale of his entire
company, including all tangible and non-tangible assets. The plaintiff argues that
under New York law, this type of contract, which is really a form of licensing
agreement, creates a type of implied duty on the part of the defendants to use their
best efforts to market, sell and distribute the subject products, given that they did
not pay any up-front consideration for the plaintiff’s business, intellectual property
or trade secrets. Without this implied duty, the plaintiff would be at the mercy of
the defendants who could simply delay any marketing or sale of the products until
the time period when their contractual obligations under the APA were no longer
in effect.

This argument finds support in longstanding New York caselaw that holds
that a court may imply into an agreement an obligation that a license must use

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reasonable efforts to exploit the licensed products, particularly in circumstances
where the payment of royalties on the sale of licensed products is the only
consideration received in exchange for the exclusive license. The seminal opinion
remains Justice Cardozo’s decision in Wood v Lucy, Lady Duff-Gordon, 222 NY
88 [1917]. In Wood, the parties signed an agreement by which the defendant, who
designed clothing and related accessories, gave plaintiff the exclusive right to place
her indorsements on the designs of others, with the parties to share the profits
equally. The plaintiff sued the defendant for breaching the exclusivity provision,
and defendant argued that the agreements lacked mutuality because plaintiff had
not bound himself to any promise.

Justice Cardozo rejected that contention, holding that although plaintiff
“does not promise in so many words that he will use reasonable efforts to place the
defendant's indorsements and market her designs ... such a promise is fairly to be
implied.” (Id. at 90–91) Justice Cardozo was concerned that “[u]nless [licensee]
gave his [reasonable] efforts, [licensor] could never get anything.” (Id. at 91) As he
explained, “[w]e are not to suppose that one party was to be placed at the mercy of
the other.” (Id).

Whether the holding in Wood is applicable to this case is a fact-intensive
question that cannot be resolved on the pleadings or the documentary evidence,
mainly the APA, submitted by the defendants. Where it is alleged that a contract
grants an exclusive agency and the sole compensation is a share of profits or
royalty payments, the court may imply a duty to use best efforts to generate sales
to prevent the contract from being illusory (see Wood, 222 NY at 90-91; Credit
Suisse First Boston v Utrecht-America Finance Co., 80 AD3d 485, 489 [1st Dept
2011]). When the parties have indicated an intent to be contractually bound,
courts should attempt to enforce that bargain and avoid an interpretation that
makes the contract illusory and unenforceable due to lack of mutual consideration
(see Curtis Proprieties Corp. v Grief Companies, 212 AD2d 259, 265-266 [1st
Dept 1995]).

The plaintiff argues that royalties were the sole consideration provided by
OWP. OWP claims that it also assumed the liabilities of the company, but the
plaintiff refutes that by arguing that any assumption of liabilities under the APA
was illusory given that the company had zero liabilities at closing. (NYSCEF Doc.
No. 10 at 4; NYSCEF Doc. No. 21 at 16). This too is an issue of fact that cannot be
resolved on a motion to dismiss. While most of the cases cited are federal cases,
there is a well-developed body of caselaw holding that a contract to pay royalties
contains an implied covenant to use reasonable efforts to market the product—

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where the only compensation called for by the contract is payment of royalties.
(See, e.g., Zilg v. Prentice–Hall, Inc., 717 F2d 671, 680 (2d Cir.1983) [When a
publisher has exclusive rights to publish a book, “the promise to publish ... implies
a good faith effort to promote the book ....”], cert. denied, 466 U.S. 938, [1984];
Bloor v Falstaff Brewing Corp., 601 F2d 609, 614 [2d Cir.1979] [Due to royalty
provision, “[e]ven without the best efforts clause [defendant] would have been
bound to make a good faith effort to see that substantial sales of [plaintiff's]
products were made.”] ; G. Golden Assoc. of Oceanside, Inc. v. Arnold Foods Co.,
Inc., 870 FSupp. 472, 476 [E.D.N.Y.1994] [“It is well settled under New York law
that where ongoing commissions or royalties are to be paid in an exclusive
arrangement, a court will imply a covenant on the part of an exclusive
licensee/assignee to exploit the subject matter of the license/assignment with due
diligence ‘where such a covenant is essential as a matter of equity to give meaning
and effect to the contract as a whole.” ’])
While OWP relies on Sharkey v. Zimmer USA, Inc. 2021 WL 3501160
[SDNY 2021]) to argue against implied duties where there is an integration clause,
Sharkey is distinguishable. In Sharkey, the plaintiff received a $100,000 upfront
payment, meaning the contract had value regardless of sales and the contract also
expressly disclaimed any implied duty to use best efforts (id. at *7-8). Here, taking
the plaintiff's allegations as true, he received no upfront payment. Without an
implied duty to market, OWP could theoretically sell zero products, pay zero
royalties, and own the brand for free, placing the plaintiff at the mercy of OWP,
the precise scenario Wood prohibits (Wood, 222 NY at 91). Whether OWP used
reasonable efforts or whether its cessation of marketing was a justifiable business
decision in light of the QVC controversy is a question of fact not suitable for
dismissal at the pleading stage (see Bloor, 601 F2d at 609 ). Thus, the first cause of
action survives.
The second cause of action is for breach of the duty of loyalty. This claim is
dismissed. This was clearly an arm’s-length commercial transaction. OWP was
nothing more than a purchaser of assets who agreed to give the plaintiff royalty
payments in exchange for those assets. There was no fiduciary relationship created
that would assume a higher level of trust between the parties or impose a duty of
loyalty on OWP towards the plaintiff. No fiduciary relationship has been pled
between a buyer and seller of assets that would sufficiently support this claim.

The third cause of action is for Breach of Good Faith and Fair Dealing. This
claim is dismissed as duplicative of the breach of contract claim. Both claims arise
from the same facts (failure to properly market and sell the Feltman’s products)

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and seek identical damages (see Logan Advisors, LLC v Patriarch Partners, LLC,
63 AD3d 440, 443 [1st Dept 2009]).
The fourth and sixth causes of action allege fraud and misrepresentation.
These claims are inadequately pled as they only assert that OWP entered into the
APA while knowing that they never intended to actually attempt to sell or market
any Feltman’s products until after the sunset provision. A fraud claim cannot be
based solely on an allegation that a party did not intend to perform a contract (see
Remora Capital S.A. v Dukan, 175 AD3d 1219, 1221 [1st Dept 2019]). Plaintiff’s
allegation that OWP misrepresented their intent to market and/or sell Feltman’s
products is indistinguishable from the breach of contract claim. Accordingly, the
fourth and sixth causes of action are dismissed. The fifth cause of action for unjust
enrichment is also dismissed because a valid contract (the APA) governs the
subject matter of the dispute.

Finally, the ninth and tenth causes of action are dismissed as they fail to state
a cause of action. The ninth cause of action seeks to pierce the corporate veil and
hold Ross Shuket personally liable for the breach of the APA. A party seeking to
pierce the corporate veil must show “complete domination of the corporation in
respect to the transaction attacked” and that “such domination was used to commit
a fraud or wrong against the plaintiff” (Matter of Morris v New York State Dept. of
Taxation & Fin., 82 NY2d 135, 141 [1993]). Because “New York law disfavors
disregard of the corporate form, mere conclusory allegations that the corporate
structure is a sham are insufficient to warrant piercing the corporate veil (see
Sutton 58 Assoc. LLC v Pilevsky, 189 AD3d 726, 729 [1st Dept 2020];
Metropolitan Transp. Auth. v Triumph Adv. Prods., 116 AD2d 526, 528 [1st Dept
1986]). Instead, the party seeking to pierce the corporate veil “must establish that
the owners, through their domination, abused the privilege of doing business in the
corporate form to perpetrate a wrong or injustice against that party.” (Morris, 82
NY2d at 142)

Here, the plaintiff fails to allege facts showing Shuket abused the corporate
form of OWP to commit a fraud. The allegations that Shuket forced Quinn to
delete tweets and cease his own marketing efforts on behalf of Feltman’s are
actions taken in his corporate capacity as Executive Vice President to preserve the
business relationship with QVC, not an abuse of the corporate structure for
personal gain. This claim is dismissed. The tenth cause of action for equitable
fraud is also dismissed. As conceded by the plaintiff, this is duplicative of other
fraud claims and generally unavailable to private litigants seeking money damages
[NYSCEF Doc. No. 21 at 21].

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Accordingly, in motion sequence 001, the motion to dismiss is granted to the
extent that the second through tenth causes of action are hereby dismissed as to the
defendants OWP and Shuket and denied to the extent that the first cause of action
for breach of contract is allowed to go forward on an implied contract theory as
against OWP.
Motion Sequence 002

In Motion Sequence 002, the defendants QVC and Christina Pennypacker
move to dismiss pursuant to CPLR §§ 3211(a)(1), (a)(7), and (a)(8). They argue
that this action in New York is precluded by a mandatory forum selection clause in
the APA. They also maintain that the complaint fails to state a cause of action
against them and that the court lacks personal jurisdiction over them.
A contractual forum selection clause is documentary evidence that may
provide a proper basis for dismissal (see Landmark Ventures, Inc. v Birger, 147
AD3d 497 [1st Dept 2017]). Section 21.5 of the APA states:
"The parties agree that the courts of the State of New York, Albany County,
and the Federal District Court for the Northern District of New York, shall
be the appropriate sites of venue for actions relating to this Agreement..."
[NYSCEF Doc. No. 18 at 23, § 21.5].

The plaintiff argues that this clause is non-exclusive. However, the use of
the word "shall" renders the clause mandatory (see Spirits of St. Louis Basketball
Club, L.P. v Denver Nuggets, Inc., 84 AD3d 454, 455 [1st Dept 2011]). While
QVC and Pennypacker are non-signatories, they may invoke the clause because
they are closely related to the dispute and the claims against them (tortious
interference) are expressly premised on the existence and terms of the APA (see
Cfirstclass Corp. v Silverjet PLC, 560 FSupp2d 324, 328 [SDNY 2008). The Court
finds the clause is mandatory and designates Albany County or the Northern
District of New York as the exclusive venues.. However, an argument can be
made that since OWP, a signatory to the APA has seemingly waived enforcement
of the forum selection clause, the non-signatory party can no longer invoke it..

Even if venue were proper, the claims against QVC and Pennypacker fail on
the merits. To plead tortious interference with contract, a plaintiff must allege: (1)
the existence of a valid contract; (2) defendant’s knowledge of that contract; (3)
defendant’s intentional procurement of the breach without justification; (4) actual
breach; and (5) damages (see Lama Holding Co. v Smith Barney Inc., 88 NY2d
413, 424 [1996]). Most importantly, a plaintiff must plead that the defendants

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acted without economic justification (see Levine v Yokell, 258 AD2d 296 [1st Dept
1999]). The complaint itself alleges that QVC received multiple complaints and
threats of a boycott from the public regarding the plaintiff’s social media conduct
and his interactions with Joshua Block, and that QVC acted to protect its brand
from further attacks. [NYSCEF Doc. No. 17 at ¶¶ 20, 22; NYSCEF Doc. No. 10 at
5]. Protecting one’s own business interest from public controversy and customer
complaints constitutes a valid economic justification and thus the plaintiff cannot
make out a cause of action for tortious interference against QVC or Ms.
Pennypacker. Accordingly, in motion sequence 002, the motion to dismiss is
granted and the complaint is dismissed in its entirety against the defendants QVC
and Christina Pennypacker.

In Motion sequence 001, the motion to dismiss is granted in part and denied
in part. The second, third, fourth, fifth, sixth, ninth and tenth causes of action are
dismissed with prejudice The motion is denied as to the first cause of action for
breach of contract against the defendant OWP only and the action shall proceed
solely on this claim against OWP only. In motion sequence 002, the motion to
dismiss by defendants QVC and Christina Pennypacker is granted and the
complaint is dismissed in its entirety as against them with prejudice. OWP shall
have 20 days from the date of this order to serve an answer to the remaining cause
of action.

This constitutes the Decision and Order of the Court.

,
~~
2/24/2026
DATE NICHOLAS W. MOYNE, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □
GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11279491. Public record. Not legal advice.