Opinion
Index No. 601647/23 Motion Seq. 001
03-22-2024
HEROLD PIERRE, on behalf of himself and all others similarly situated, Plaintiff, v. JEFFERSON CAPITAL SYSTEMS, LLC, Defendant.
Unpublished Opinion
Submission Date: 12/12/23
DECISION AND ORDER
Erica L. Prager, Judge
NYSCEF Doc. No.
Notice of Motion, Affirmation & Exhibits, Memorandum of Law in Support...............4-11
Memorandum of Law in Opposition & Exhibits..........13-15
Memorandum of La w in Reply & Exhibits........................16-19
Upon the foregoing papers, the motion of Defendant, Jefferson Capital Systems, LLC, pursuant to CPLR 3211(a)(3) and (7) to dismiss the complaint is determined as hereinafter set forth.
Background and procedural facts
The facts recited herein, taken from the complaint (NYSCEF Doc. No. 1), ate presumed to be true for the purposes of this motion to dismiss (see Joseph v. Fensterman, 204 A.D.3d 766 [2d Dept 2022]).
Plaintiff allegedly incurred a debt to nonparty Verizon, and that debt was transmitted to Defendant, a debt collection agency, for collection. In an attempt to collect the debt, Defendant sent Plaintiff a collection letter dated January 27, 2022, and utilized a third-party vendor to send the letter to Plaintiff
Plaintiff commenced this putative class action on January 27, 2023, alleging that Defendant violated the Farr Debt Collection Practices Act (15 USC § 1692 et seq.) ("FDCPA") by disclosing Plaintiff's personal information to the third-party vendor. The putative class consists of all consumers residing in New York that have received a letter from Defendant via a third-party vendor concerning debts primarily used for personal, household, or family purposes, within one year prior to the filing of the complaint. Plaintiff seeks statutory damages, costs, and attorneys' fees. Defendant moves to dismiss the complaint pursuant to CPLR 3211(a)(3), contending that Plaintiff lacks standing to maintain the action, and pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Plaintiff opposes the motion.
Analysis
Standing
Defendant contends Plaintiff lacks standing to sue under the FDCPA. since Plaintiff has not alleged that he suffered a concrete injury in fact from the transmission of information to the third-party vendor. Moreover, since there is no common-law analogue to Plaintiff's FDCPA claims, he has failed to allege an intangible injury, In opposition, Plaintiff contends that he has suffered an injury since Defendant disclosed his information in violation of 15 USC § 1692c. Plaintiff claims Defendant is incorrectly seeking to apply the federal standard relating to standing. However, according to Plaintiff, under the more lenient New York standard, he has standing to enforce his statutorily-created rights. Plaintiff argues that no common-law analogue is necessary to establish standing, but, in any event, he has suffered an invasion of privacy.
Plaintiff contends that Defendant's reliance on Zoltan v Credit Collection Servs., Supreme Court, Rockland County Index No. 036901/2021, a case with identical facts, is misplaced, since at the time Plaintiff filed his opposition, that Court's order was pending reconsideration, based on its inappropriate reliance on the federal standard. However, in an Order dated August 15, 2023, the Supreme Court, Rockland County, denied the plaintiffs motion for leave to reargue, finding that it did hot overlook or misapprehend the facts or law in determining that the plaintiff had failed to allege that he suffered an injury in fact as a result of the alleged FDCPA violations (see NYSCEF Doc. No. 44 under Supreme Court, Rockland County Index No. 036901/2021).
"Standing is a threshold determination that a person should be allowed access to the courts to adjudicate the merits of a particular dispute" (Frankel v J. P. Morgan Chase & Co., 193 A.D.3d 689, 690 [2d Dept 2021], citing Society of Plastics Indus., Inc. v County of Suffolk, II N.Y.2d 761, 769 [1991]). "Where a CPLR 3211(a)(3) motion is based upon an alleged lack of standing, the burden is on the moving defendant to establish, prinia facie, the plaintiff's lack of standing as a matter of law" (Sizova v Union Mitt. Fire Ins. Co., 217 A.D.3d 1007, 1007-1008 [2d Dept 2023] [internal quotation marks omitted]). "To defeat a defendant's motion to dismiss, the plaintiff has no burden of establishing its standing as a matter of law, but must merely raise a question of fact as to the issue" (id. at 1008 [internal quotation marks omitted]).
Pursuant to § 1692c(b) of the FDCPA, as relevant herein, "without the prior consent of the consumer given directly to the debt collector. . . a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector" (15 USC § 1692c[b]). Federal courts have determined that plaintiffs lack standing to maintain actions for violations of this section, in cases such as this, where a third-party vendor sent a letter on behalf of a debt collector, where there is no allegation of a concrete injury (see e.g., In re FDCPA Mailing Vendor Cases, 551 F.Supp.3d 57 [EDNY 2021]). Under Article III of the United States. Constitution, federal courts may adjudicate only lawsuits that present a "case or controversy." Standing does not exist in every case in which "a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right" (Spokeo, Inc. v. Robins, 578 U.S. 330,341 [2016]). "Article III standing requires a concrete injury even in the context of a statutory violation" (TransUnion LLC v Ramirez, 594 U.S. 413, 426 [2021], quoting Spokeo, Inc. v. Robins, 578 U.S. at 341). The "'mere risk of future harm standing alone, cannot qualify as a concrete harm'" (In re FDCPA Mailing Vendor Cases, 551 F.Supp.3d at 64, quoting TransUnion LLC v Ramirez, 594 U.S. at 436).
As Plaintiff contends, the case or controversy requirement on which the federal standing rule is grounded "has no analogue in the State Constitution" (Society of Plastics Industry, Inc. v County of Suffolk, 77 N.Y.2d at 772), and the state standing, requirements are not as strong as those under Article III. However, to establish standing, a plaintiff still has. the "burden of establishing both an injuiy-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated" (Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23NY3d 1,6 [2014]). Moreover, "[t]o confer standing, a claimed injury may not depend upon speculation about what might occur in the future, but must consist of cognizable harm, meaning that a plaintiff has been or will be injured" (Frankel v J.P. Morgan Chase & Co., 193 A.D.3d at 689).
Contrary to Plaintiff's contention. New York Courts "follow the dictates of TransUnion [v Ramirez, 594 U.S. 413] in requiring a showing of actual. concrete harm to support a claim of injury in fact" (Gregg v SN Servicing Corp., 2023 WL 8936122 [Sup Ct, Queens County 2023], citing Matter of Rosado-Cifiello v Bd. of Educ. of Yonkers City School Dist., 219 A.D.3d 839, 841 [2d Dept 2023]). "To demonstrate an injury in fact, a plaintiff must establish that he or she will actually be harmed by the challenged action, and that the injury is more than conjectural" (American Massage Therapy Assn, v Town of Greenburgh, 173 A.D.3d 1009, 1010 [2d Dept 2019] [internal quotation marks omitted]).
Plaintiff herein has failed to allege in the complaint any actual injury resulting front the alleged disclosure and has failed to allege any current or past harm beyond the alleged statutory violation itself. Thus, he has failed to allege that he suffered any concrete injury (see Gregg r,SW Servicing Corp., 2023 WL 8936122).
To the extent Plaintiff claims that he was injured due to an invasion of his privacy (Plaintiff's Opposition to Defendant's Motion to Dismiss, NYSCEF Doc. No. 13), the complaint does not allege that Plaintiff's privacy was invaded or injured, and in fact, in alleging that there are common questions of law and fact applicable to all class members, Plaintiff asserts that one of the common questions is “whether the Plaintiff and the Class have been injured by the conduct of Defendant" (emphasis added), illustrating that Plaintiff's claims are speculative (see Frankel v J P. Morgan Chase Co., 193 A.D.3d at 690). Moreover, to the extent Plaintiff alleges in opposition that the disclosure of his information invaded his privacy, "New. York State does hot recognize the common-law tort of invasion of privacy except to the extent it comes within Civil Rights Law §§ 50 and 51," which protect against the appropriation of a plaintiff's name or likeness (Fernandez v Fernandez, 216 A.D.3d 743, 745 [2d Dept 2023]), and are not at issue here. Consequently, Plaintiff has failed to raise a question of fact as to his standing to maintain this action.
Based upon the foregoing. Defendant's motion pursuant to CPLR 3211 (a)(3) to dismiss the complaint is granted. In light of this, there is no need to consider the other CPLR 3211(a) ground for dismissal asserted by Defendant. Accordingly, it is
ORDERED that the motion of Defendant pursuant to CPLR 3211(a)(3) to dismiss the complaint for lack of standing is GRANTED; and it is further, ORDERED that all requests for relief not specifically addressed herein are DENTED. This shall constitute the Decision and Order of the Court.