Summary
holding vague promises by advertisers cannot be enforced as a contract because they are incapable of being proven true or false
Summary of this case from Bologna v. Allstate Ins. Co.Opinion
April 24, 1997
Order, Supreme Court, New York County (Ira Gammerman, J.), entered March 15, 1996, which granted defendant's motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.
All four of plaintiffs' causes of action are based upon defendant's statements, made in enrollment materials and during class meetings of defendant's self-improvement/lifestyle course known as "The Conversation", that he would "provide, by embodying `The Vocabulary of The Conversation', an example of executive capacity at self-government in action". Upon the basis of this statement and others to like effect, plaintiffs allege not defendant's failure to teach The Conversation, but his promise to demonstrate the "strategies, tactics and formulations" for learning it, as described in the abstract of course materials and in class, by revealing his private life in order for students to use same as an example, and a representation of fact that defendant's private life conformed to those strategies. To the extent such a promise was made, it is too vague to be enforced as a contract ( cf., Paladino v. Adelphi Univ., 89 A.D.2d 85, 92), and to the extent such a representation was made, it was in the nature of opinion or puffery incapable of being proved true or false ( cf., supra, at 94; Sirohi v. Lee, 222 A.D.2d 222, lv dismissed and denied 88 N.Y.2d 897). Accordingly, no cause of action is stated for breach of contract or fraud. Nor does plaintiff state a cause of action for false advertising under General Business Law § 350, since the enrollment materials put in issue were clearly not advertisements, or for deceptive business practices under General Business Law § 349, since there is no allegation that the course content, i.e., the strategies for attaining a certain lifestyle, was not taught or was other than as represented. We have considered plaintiff's other contentions and find them to be without merit.
Concur — Milonas, J.P., Ellerin, Tom and Mazzarelli, JJ.