Opinion
2012-08-22
YELLOW BOOK SALES AND DISTRIBUTION CO., INC., respondent v. HILLSIDE VAN LINES, INC., et al., appellants.
John L. Juliano, P.C., East Northport, N.Y., for appellants. Smith Carroad Levy & Wan, Commack, N.Y. (Timothy Wan and Steven M. McCartan, Kansas City, Missouri, pro hac vice, of counsel), for respondent.
John L. Juliano, P.C., East Northport, N.Y., for appellants. Smith Carroad Levy & Wan, Commack, N.Y. (Timothy Wan and Steven M. McCartan, Kansas City, Missouri, pro hac vice, of counsel), for respondent.
REINALDO E. RIVERA, J.P., RANDALL T. ENG, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.
In an action to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Suffolk County (Emerson, J.), dated July 28, 2011, which granted the plaintiff's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the counterclaims of the defendant Hillside Van Lines, Inc.
ORDERED the appeal by the defendant Frank Policano is dismissed, as he is not aggrieved by the order appealed from ( seeCPLR 5511); and it is further,
ORDERED that the order is affirmed on the appeal by the defendant Hillside Van Lines, Inc.; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
In this action to recover damages for breach of contract for advertising services, the defendant Hillside Van Lines, Inc. (hereinafter Hillside), asserted two counterclaims, the first alleging fraud, and the second alleging violations of General Business Law §§ 349 and 350 based on alleged misrepresentations made by the plaintiff during contract negotiations.
In determining a motion to dismiss a counterclaim pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged as true, accord the claimant the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511;Uzzle v. Nunzie Ct. Homeowners Assn., Inc., 70 A.D.3d 928, 929–930, 895 N.Y.S.2d 203;Ballas v. Virgin Media, Inc., 60 A.D.3d 712, 712–713, 875 N.Y.S.2d 523;Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703–704, 864 N.Y.S.2d 70). On a motion to dismiss a counterclaim based upon documentary evidence pursuant to CPLR 3211(a)(1), dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the counterclaim as a matter of law ( see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190;Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;Ballas v. Virgin Media, Inc., 60 A.D.3d at 713, 875 N.Y.S.2d 523;Klein v. Gutman, 12 A.D.3d 417, 418, 784 N.Y.S.2d 581).
Hillside's first counterclaim alleged, in effect, that the plaintiff procured the subject written agreements through fraudulent inducement. While a general merger clause is ineffective to exclude parol evidence of fraud, a specific disclaimer will defeat any allegation that a contract was executed in reliance upon contrary oral representations ( see Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 320–321, 184 N.Y.S.2d 599, 157 N.E.2d 597;DiBuono v. Abbey, LLC, 95 A.D.3d 1062, 944 N.Y.S.2d 280;McGowan v. Winant Place Assoc., 270 A.D.2d 466, 467, 705 N.Y.S.2d 294;Busch v. Mastropierro, 258 A.D.2d 492, 493, 684 N.Y.S.2d 632). Here, documentary evidence conclusively established the plaintiff's defense to Hillside's first counterclaim, since that counterclaim, which alleged fraud, was barred by the specific disclaimer provisions contained in the parties' agreements ( see Danann Realty Corp. v. Harris, 5 N.Y.2d at 320–321, 184 N.Y.S.2d 599, 157 N.E.2d 597;DiBuono v. Abbey, LLC, 95 A.D.3d 1062, 944 N.Y.S.2d 280;Laxer v. Edelman, 75 A.D.3d 584, 586, 905 N.Y.S.2d 649;Fitzgerald v. Hudson Natl. Golf Club, 11 A.D.3d 426, 428, 783 N.Y.S.2d 615;Capstone Enters. of Port Chester v. County of Westchester, 262 A.D.2d 343, 691 N.Y.S.2d 574). Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was pursuant to CPLR 3211(a)(1) to dismiss Hillside's first counterclaim.
To successfully assert a claim under General Business Law §§ 349 or 350, a party must allege that its adversary has engaged in consumer-oriented conduct that is materially misleading, and that the party suffered injury as a result of the allegedly deceptive act or practice ( see Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941, 944 N.Y.S.2d 452, 967 N.E.2d 675). General Business Law article 22–A, entitled “Consumer Protection from Deceptive Acts and Practices,” and which includes General Business Law §§ 349 and 350, is addressed to practices which have a broad impact on consumers at large. Accordingly, private contractual disputes which are unique to the parties do not fall within the ambit of the statute ( see Canario v. Gunn, 300 A.D.2d 332, 333, 751 N.Y.S.2d 310;see also 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). Here, the Supreme Court properly granted that branch of the plaintiff's motion which was pursuant to CPLR 3211(a)(7) to dismiss Hillside's second counterclaim, which alleged violations of General Business Law §§ 349 and 350, since the alleged misrepresentations arising out of the agreement between the plaintiff and Hillside had no impact on consumers or the public at large ( see Canario v. Gunn, 300 A.D.2d at 333, 751 N.Y.S.2d 310;see also Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d at 25, 623 N.Y.S.2d 529, 647 N.E.2d 741).
Hillside's remaining contentions are without merit.