Opinion
2002-03977
Argued March 13, 2003.
April 14, 2003.
In an action to recover damages for breach of contract and violation of New York General Business Law § 349, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Dunne, J.), dated March 18, 2002, which denied their motion for class certification and granted the defendant's cross motion to dismiss the complaint for failure to state a cause of action.
Katz Kleinman, Uniondale, N.Y. (Lawrence Katz and Abraham Kleinman of counsel; Edelman, Combs Latturner, LLC, Chicago, Ill. [Daniel A. Edelman, Cathleen M. Combs, James O. Latturner, and Anne M. Burton] on the brief), for appellants.
Hiscock Barclay Saperston Day, Buffalo, N.Y. (Thomas F. Knab of counsel), and Bryan Cave, LLP, New York, N.Y., for respondent (one brief filed).
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, LEO F. McGINITY, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court properly granted the defendant's cross motion to dismiss the complaint because the plaintiffs failed to state legally cognizable claims alleging breach of contract and violation of General Business Law § 349 (see Kaufman v. International Business Machs. Corp., 97 A.D.2d 925, 927, affd 61 N.Y.2d 930; cf. Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275). Although the plaintiffs claimed that the defendant's failure to fulfill a magazine subscription or send an immediate refund constituted a breach of contract, they failed to plead the existence of an agreement setting forth an affirmative duty on the part of the defendant to complete a subscription after it ceased publication of a magazine or refund the unused portion of the subscription immediately upon the cessation of the publications (see Kaufman v. International Business Machs. Corp., supra). Furthermore, the plaintiffs failed to plead that the defendant engaged in any deceptive or misleading practices or misrepresentations to constitute a violation of General Business Law § 349 (cf. Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25).
The plaintiffs' remaining contention is academic in light of our determination.
ALTMAN, J.P., SMITH, McGINITY and CRANE, JJ., concur.