Summary
acknowledging that the public harm requirement does not apply to punitive damages sought in a conversion case
Summary of this case from Blue Dog at 399 Inc. v. Seyfarth Shaw, LLP (In re Blue Dog at 399)Opinion
23677/2014E
06-15-2018
Jacquelyne GONZALEZ-VASQUEZ, on behalf of herself and as a parent on behalf of her infant child S.S., Plaintiffs, v. MAYORS AUTO GROUP-WOODSIDE, LLC, et al., Defendants.
Attorneys for Plaintiffs: Brian L. Bromberg, Bromberg Law Office, P.C., NYC, Matthew Schedler, Divya Subrahmanyam, CAMBA Legal Services, Brooklyn, NY Attorneys for Defendants: Salmon Ricchezza Singer & Turchi, LLP (Robyn D. Kazatsky, Esq.)
Attorneys for Plaintiffs: Brian L. Bromberg, Bromberg Law Office, P.C., NYC, Matthew Schedler, Divya Subrahmanyam, CAMBA Legal Services, Brooklyn, NY
Attorneys for Defendants: Salmon Ricchezza Singer & Turchi, LLP (Robyn D. Kazatsky, Esq.)
Mary Ann Brigantti, J.
The following papers numbered 1 to 8 read on the below motion noticed on January 24, 2017 and duly submitted on the Part IA15 Motion calendar of March 28, 2018 :
Papers Submitted Numbered
Pl.'s Notice of Motion, Exhibits 1,2
Def.'s Cross-Motion, Memo. Of Law., Exhibits, 3,4
Pl.'s Reply Aff., Opp. to Cross-Motion, Exhibits 5,6
Defs.' Reply Aff. In Further Support, Opp., Exhibits 7,8
Upon the foregoing papers, defendants Mayors Auto Group Worldwide LLC, d/b/a City Mitsubishi Saab, Nick Letsios, Hector Suarez, and Andrew Beswick (collectively, "Defendants") cross-move for an order (1) pursuant to CPLR 3211, dismissing the plaintiffs' claims for punitive damages, with prejudice; (2) denying the plaintiffs' motion to compel discovery, and/or (3) staying discovery regarding punitive damages until after a determination has been made as to whether punitive damages are appropriate, and/or (4) granting such other and further relief as this court deems just and proper. The plaintiffs Jacquelyne Gonzalez-Vasquez, on behalf of herself as a parent and on behalf of her infant child S.S. ("Plaintiff") opposes the cross-motion.
On a motion to dismiss pursuant to CPLR 3211(a)(7), a court's role is ordinarily limited to determining whether the complaint states a cause of action ( Frank v. DaimlerChrysler Corp. , 292 AD2d 118 [1st Dept. 2002] ). In other words, the determination is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (See Stendig, Inc. v. Thom Rock Realty Co. , 163 AD2d 46 [1st Dept. 1990] ; Leviton Manufacturing Co., Inc. v. Blumberg , 242 AD2d 205 [1st Dept. 1997] [on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true] ). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see, CPLR 3026 ). The court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory"( Leon v. Martinez , 84 NY2d 83, 87-88 [1994] ). The motion should be denied if, from the pleading's four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law ( McGill v. Parker , 179 AD2d 98 [1st Dept. 1992] ).
Punitive damages are available in "limited circumstances where it is necessary to deter defendant and others like it from engaging in conduct that may be characterized as ‘gross’ and ‘morally reprehensible,’ and of ‘such wanton dishonesty as to imply a criminal indifference to civil obligations’ " (see New York University v. Contintential , 87 NY2d 308, 315-16 [1995] [ Rocanova v. Equitable Life Assur. Socy. , 83 NY2d 603 [1994], quoting Walker v. Sheldon , 10 NY2d 401, 404 [1961] ] ).
In this case, Plaintiff's complaint asserts causes of action which, proven to be true, may sustain their claims for punitive damages against defendants. Plaintiffs allege that Defendants violated General Business Law ("GBL") § 349, which its broad in scope and prohibits deceptive and misleading business practices(see Wilner v. Allstate Ins. Co. , 71 AD3d 155, 159-160 [2nd Dept. 2010] ; citing Karlin v. IVF America, Inc. , 93 NY2d 282 [1999] ). To state a cognizable claim under this section, a plaintiff must identify consumer-oriented misconduct which is deceptive and materially misleading to a reasonable consumer and which causes actual damages ( id at 165 [internal citations omitted] ). Punitive damages may be awarded on a cause of action for violation of GBL § 349 where the complaint alleges conduct that "evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct constitutes willful or wanton negligence or recklessness" ( id at 167 [internal citations omitted] ). In this case, Plaintiffs here allege that defendants engaged in "bait-and-switch" advertising and induced plaintiff to sign a series of blank contracts, refused to refund her full deposit amount and then attempted to have plaintiff sign a waiver or general release agreeing to discharge defendants from liability, and also acknowledging that plaintiff made an illegal audio recording of defendants and to assume liability in litigation if the audio recordings surfaced. Accepting these allegations as true, they are sufficient to alleged conduct that was wilful, wanton, and transcended "mere carelessness" so as to warrant punitive damages. Furthermore, Plaintiffs adequately allege consumer-oriented conduct that would have a broad impact on consumers at large (see Gaidon v. Guardian Life Ins. Co. of Am , 94 NY2d 330, 344 [1999] ).
Plaintiffs' amended complaint also contains a cause of action for conversion, which may warrant award of punitive damages even without a public harm where a plaintiff provides that defendant acted with "actual malice involving intentional wrongdoing" or its conduct amounted to "a wanton or reckless disregarded of plaintiff's rights" ( Boston Concessions Group, Inc. v. Criterion Center Group , 250 AD2d 435 [1st Dept. 1998], citing Giblin v. Murphy , 73 NY2d 769 [1988] ). In this case, the same allegations that support Plaintiff's GBL § 349 claim also support their claim for conversion, as it may be inferred that defendants acted wilfully and maliciously when they refused to return Plaintiff's deposit.
Plaintiffs also assert a cause of action for false arrest and imprisonment, which may warrant punitive damages where there is evidence that defendant acted maliciously or recklessly (see Hart v. City of New York , 186 AD2d 398 [1st Dept. 1992] ; cf. Guion v. Associated Dry Goods Corp. (Lord and Taylor Division) , 56 AD2d 798 [1st Dept. 1977] ). "[O]ne who wrongfully accuses another of criminal conduct and induces or procures that person's arrest may be liable for false arrest" (see D'Elia v. 58-25 Utopia Parkway Corp. , 43 AD3d 976, 978 [2nd Dept. 2007], quoting Dunn v. City of Syracuse , 83 AD2d 783 [4th Dept. 1981] ). In this case, Plaintiffs allege that the defendants told police that either plaintiff's husband or her children vandalized one of defendants' cars located outside of the dealership. Defendants continued to demand that plaintiff executed a waiver/general release, and they threatened to have plaintiff's child, SS, arrested at his school for scratching the car if she did not do so. Plaintiffs further allege that upon information and belief, one of the defendants thereafter reported to the police that SS had scratched a car on the lot, and SS was arrested while he was in school and taken to police custody for 5-6 hours. Later, all charges were dropped and a Notice of Declination was issued. The foregoing attestations sufficiently set forth a malicious conduct that would sustain a cause of action for both false arrest and punitive damages stemming from that tort. Defendant's reply submission of surveillance footage outside of the defendants' business does not conclusively show that SS scratched any vehicle and thus does not demonstrate any defense to plaintiff's cause of action. Furthermore, Defendants' submissions of an alleged phone call transcript between police and plaintiff does not constitute "documentary evidence" that conclusively establishes that plaintiffs have no cause of action ( CPLR 3211[a][1] (see Basis Yield Alpha Fund [Master] v. Goldman Sachs Group, Inc. , 115 AD3d 128, 136 [1st Dept. 2014] [internal citations omitted] ). There is insufficient evidence at this stage of the proceedings to determine whether the police acted on their own accord independent of allegedly false information provided by defendants when they arrested SS.
A cause of action for defamation requires a (1) false statement (2) published without privilege or authorization to a third party (3) constituting fault as judged by, at a minimum, a negligence standard, and (4) must either cause special harm or constitute defamation per se (see Geraci v. Probst , 61 AD3d 717, 719 [2nd Dept. 2009] [internal quotations omitted] ). Punitive damages may be awarded on a defamation claim where the defendant-speaker was solely motivated by a desire to injure the plaintiff, and there is some evidence that this animus was "the one and only cause for the publication" (see Morsette v. "The Final Call" , 309 AD2d 249, 254 [1st Dept. 2003] ). Here, Plaintiffs' complaint alleges that defendants falsely reported to police that her son had committed a crime, and that defendants were motivated by a desire for plaintiff to sign a waiver or release in relation to the refund of her deposit. Upon a liberal reading of these allegations, the plaintiff adequately stated a cause of action for punitive damages predicated upon her defamation cause of action.
In light of the foregoing, Defendants' cross-motion to dismiss is denied.
Plaintiff's motion in chief to compel disclosure is respectfully referred to the Hon. Laura Douglas, J.S.C.
This constitutes the Decision and Order of this Court.