Summary
holding that the lower court "properly dismissed for failure to state a cause of action . . . plaintiff's breach of contract claims since plaintiff failed to allege the breach of any particular contractual provision"
Summary of this case from Doyle v. Mastercard Int'l Inc.Opinion
800, 800A
April 15, 2003.
Judgment, Supreme Court, New York County (Herman Cahn, J.), entered June 3, 2002, bringing up for review an order, same court and Justice, entered May 29, 2002, which granted defendant's motion pursuant to CPLR 3211(a)(1) and (7), and dismissing the complaint, unanimously affirmed, with costs. Appeal from the order entered May 29, 2002, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.
Geoffrey M. Horn, for plaintiff-appellant.
Richard Cashman, for defendant-respondent.
Before: Nardelli, J.P., Williams, Friedman, Marlow, Gonzalez, JJ.
Plaintiff's General Business Law § 349 claims were properly dismissed in light of plaintiff's failure to allege deceptive conduct by defendant "likely to mislead a reasonable consumer acting reasonably under the circumstances" (Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 26; see also Stutman v. Chemical Bank, 95 N.Y.2d 24, 29).
Also properly dismissed for failure to state a cause of action were plaintiff's breach of contract claims since plaintiff failed to allege the breach of any particular contractual provision (Lebow v. Kakalios, 156 A.D.2d 301; Shields v. School of Law, 77 A.D.2d 867, 868). Moreover, even if the documents to which plaintiff refers could be considered a contract, defendant's alleged activities would not constitute a breach of that contract.
We have considered plaintiff's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.