Opinion
Index No. 654335/2022 Motion Seq. No. 001
02-17-2023
ADRIAN PHILIP BISCEGLIA, Plaintiff, v. RECOVERY RACING, LLC D/B/A FERRARI OF FORT LAUDERDALE, JACK BARDAKJIA, BRIAN PAIGE, JOHN DOE Defendant.
Unpublished Opinion
MOTION DATE 02/08/2023.
PRESENT: HON. LYLE E. FRANK, Justice.
DECISION + ORDER ON MOTION
LYLE E. FRANK, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20 were read on this motion to/for DISMISS.
Defendants move, pre-answer, to dismiss the complaint, pursuant to CPLR § 3211 (a)(1), (7) and (8), in response plaintiff timely files an amended complaint but does not oppose the substance of the defendants' underlying motion. For the reasons set forth below, defendants' motion is granted.
Preliminarily, the portion of defendants' motion that seeks to dismiss based on the lack of personal jurisdiction is denied as it is not yet ripe. Plaintiff's fding of an amended complaint was on February 3, 2023, thus the time for service of the complaint has not yet expired.
It is well-settled that on a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the pleading is to be liberally construed, accepting all the facts as alleged in the pleading to be true and giving the plaintiff the benefit of every possible inference. See Avgush v Town of Yorktown. 303 A.D.2d 340 [2d Dept 2003]; Bernberg v Health Mgmt. Sys., 303 A.D.2d 348 [2d Dept 2003], Moreover, the Court must determine whether a cognizable cause of action can be discerned from the complaint rather than properly stated. Matlin Patterson ATA Holdings LLC v Fed. Express Corp., 87 A.D.3d 836, 839 [1st Dept 2011], "The complaint must contain allegations concerning each of the material elements necessary to sustain recovery under a viable legal theory.'" Id.
To plead breach of contract, the proponent must allege the existence of a contract, the plaintiffs performance thereunder, the defendant's breach thereof, and resulting damages. Second Source Funding, LLC v Yellowstone Cap. LLC, 144 A.D.3d 445, 446 [1st Dept 2016]; Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426 [1st Dept 2010], "In a motion to dismiss pursuant to CPLR 3211 (a) (1), the defendant has the burden of showing that the relied-upon documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim" (Fortis Fin. Sen's., LLC v Fimat Futures USA, Inc., 290 A.D.2d 383, 383 [1st Dept 2002] internal quotations and citations omitted). Further, dismissal pursuant to CPLR § 3211(a)(1) is warranted where documentary evidence "conclusively establishes a defense to the asserted claims as a matter of law." Gottesman Co. v A.E.W, Inc., 190 A.D.3d 522, 24 [1st Dept 2021], As to the first cause of action for breach of contract, the Court finds that plaintiff has insufficiently pled a cause of action for breach of contract as against defendant Recovery Racing LLC. Neither party has annexed the entirety of the subject contract, or the subject title and thus the Court cannot determine whether the vehicle inspection report adequately refutes the breach of contract claim.
However, in the light most favorable to the non-moving party, assuming that in the absence of the entire contract that there was a breach, plaintiff has failed to allege a nexus between its alleged damages and the alleged breach of the defendants. It is well established that the plaintiff must include "factual allegations which sufficiently demonstrate a causal relationship between purported conduct on the part of defendants and damages suffered by plaintiff' (Gall v Summit, Rovins & Feldesman, 222 A.D.2d 225, 226 [1st Dept 1995]). Accordingly, the first cause of action for breach of contract is dismissed.
Similarly, plaintiffs second cause of action, sounding in negligence fails for the same reasons stated above.
As to the third cause of action, which is also listed as its second cause of action, plaintiff alleges violations pursuant to General Business Law ("GBL") §380-s and §380-i. While a liberal reading of this section does not appear to fit into any cognizable cause of action, GBL § 380-s, entitled identity theft, provides in relevant part that "no person ... shall knowingly and with the intent to defraud, obtain, possess, transfer, use, or attempt to obtain, possess, transfer or use credit, goods, services or anything else of value in the name of another person without his or her consent". "The law authorizes a civil action only if the identity theft resulted in the transmission or provision to a consumer reporting agency of information that would otherwise not have been transmitted or provided. (Galper v JP Morgan Chase Bank, N.A., 802 F.3d 437, 442 [2d Cir 2015] citing N.Y. Gen. Bus. L. § 380-1)
GBL § 3 80-i is entitled "Requirements on users of consumer reports", the Court is unclear as is the complaint on any factual allegations or private right of action conferred as a result of this section of the GB1, but need not reach + l-ia woim
The Court finds that the complaint is insufficient as it fails to allege any factual allegations to support a cause of action for identity theft and any resulting damages as required. Accordingly, it is hereby
ORDERED that amended complaint is dismissed in its entirety, and the Clerk of the Court shall enter judgment accordingly.