Summary
In Thompson v Parkchester Apts. Co. (271 AD2d 311, 311 [1st Dept 2000]), the court held that those plaintiffs failed to "set forth a viable claim under [GBL] § 349 since they have not met the threshold requirement for such a claim by showing that the alleged deceptive acts, if permitted to continue, would have a broad impact on consumers at large."
Summary of this case from Bd. of Directors of the Maidstone Landing Homeowners Ass'n, Inc. v. Maidstone Landing, LLCOpinion
April 18, 2000.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 6, 1999, which denied defendant's motion to dismiss the amended complaint insofar as it sought dismissal of the causes of action of plaintiffs Diane Fleming Thompson and Syed M. Hussain, but granted the motion to the extent of dismissing the causes of action of plaintiffs Lena Leftwich and Betty Jane Bundrant as time-barred, unanimously modified, on the law, to grant defendant's motion to the further extent of dismissing the complaint's remaining causes, i.e. those asserted by plaintiffs Diane Fleming Thompson and Syed M. Hussain, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
Robert E. Levy, for plaintiffs-respondents.
Robert E. Levy, for plaintiffs-respondents-appellants.
George W. Berger, for defendant-appellant-respondent.
NARDELLI, J.P., WILLIAMS, TOM, LERNER, RUBIN, JJ.
In this action alleging fraud in connection with the purchase of condominium units in defendant's apartment complex, plaintiffs have failed in their amended complaint to plead, "a unique set of circumstances whose remedy is not already available to the Attorney General" (Thompson v. Parkchester Apts. Co., 249 A.D.2d 68,lv dismissed 92 N.Y.2d 946). While describing their claim as one seeking redress for "a deceptive act as defined in the code" (referring to General Business Law § 349 GEN. BUS.), plaintiffs have merely repeated the same grievance alleged in the original complaint, adding the fact that the materials distributed by defendant in connection with the purchase of the condominiums in question contained false information regarding the condition of the plumbing. Since, pursuant to the Martin Act, the Attorney General has exclusive jurisdiction to prosecute sponsors who make false statements in condominium offering plans filed thereunder, plaintiffs have no standing to pursue the above-described claims, as alleged. Moreover, even if we were to assume that the allegations set forth in the amended complaint were not subject to the Martin Act, plaintiffs would nonetheless fail to set forth a viable claim under General Business Law § 349 GEN. BUS. since they have not met the threshold requirement for such a claim by showing that the alleged deceptive acts, if permitted to continue, would have a broad impact on consumers at large (see, New York Univ. v. Cont. Ins. Co., 87 N.Y.2d 308, 320). The presently litigated dispute, involving faulty plumbing and what the individual plaintiffs were told about the condition of the plumbing when they purchased their individual units, is unique to the parties at this particular complex, and thus, does not fall within the ambit of the statute (see, Devlin v. 645 First Ave. Manhattan Co., 229 A.D.2d 343, 344).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.