Summary
finding that the complaint failed to plead a claim under General Business Law § 349
Summary of this case from Adtrader, Inc. v. Google LLCOpinion
01-26-2017
Richard J.J. SCAROLA, Plaintiff–Respondent, v. VERIZON COMMUNICATIONS, INC., Defendant–Appellant.
Phillips Lytle LLP, Buffalo (Sean C. McPhee of counsel), for appellant. Richard J.J. Scarola, respondent pro se.
Phillips Lytle LLP, Buffalo (Sean C. McPhee of counsel), for appellant.
Richard J.J. Scarola, respondent pro se.
FRIEDMAN, J.P., RICHTER, SAXE, MOSKOWITZ, KAPNICK, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered May 26, 2016, which, insofar as appealed from, denied defendant's motion to dismiss the cause of action under General Business Law § 349, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.The complaint fails to allege any of the three elements of a claim under General Business Law § 349 (see Stutman v. Chemical Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 [2000] ). First, the challenged conduct, i.e., defendant's continuing to bill plaintiff for telecommunications services, and harassing him for payment, after the relevant account was closed, was not consumer-oriented. The account was a business, not a consumer, account. Nor did defendant's conduct have "a broader impact on consumers at large" (see Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 [1995] ; Cruz v. NYNEX Info. Resources, 263 A.D.2d 285, 290, 703 N.Y.S.2d 103 [1st Dept.2000] ["The statute's consumer orientation does not preclude its application to disputes between businesses per se, but it does severely limit it"] ). Plaintiff's conclusory allegations as to the effect of the conduct on other consumers are insufficient to transform a private dispute into conduct with further-reaching impact (see Camacho v. IO Practiceware, Inc., 136 A.D.3d 415, 24 N.Y.S.3d 279 [1st Dept.2016] ; Golub v. Tanenbaum–Harber Co., Inc., 88 A.D.3d 622, 623, 931 N.Y.S.2d 308 [1st Dept.2011], lv. denied 19 N.Y.3d 806, 2012 WL 2378694 [2012] ).
Second, the continued billing after termination of the account was not deceptive or materially misleading, because it was clearly in error and not "likely to mislead a reasonable consumer acting reasonably under the circumstances" (Oswego, 85 N.Y.2d at 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 ).
Third, plaintiff does not allege that he was injured as a result of defendant's alleged deceptive acts. While he was not required to plead reliance, plaintiff was required to allege that he was deceived (see id. ). The complaint does not so allege.