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Gale v. Int'l Business Machines Corp.

Appellate Division of the Supreme Court of New York, Second Department
Jul 26, 2004
9 A.D.3d 446 (N.Y. App. Div. 2004)

Summary

holding that the plaintiff failed to show causation because he did not allege that he saw any of the allegedly deceptive statements

Summary of this case from Ward v. Theladders.com, Inc.

Opinion

2003-03943.

July 26, 2004.

In an action, inter alia, to recover damages for deceptive business practices, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Lifson, J.), dated March 7, 2003, which, in effect, denied class certification pursuant to CPLR 902, and, in effect, granted the defendant's motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action with leave to serve an amended complaint with respect to the plaintiff's individual causes of action only, provided such amended pleading was served on or before May 1, 2003.

Ordered that the order is affirmed, with costs.

Before: Smith, J.P, Adams, Crane and Skelos, JJ., concur.


The plaintiff allegedly purchased from an undisclosed seller an IBM Deskstar 75GXP hard disk drive. As part of its marketing campaign before releasing the new product, the defendant, International Business Machines Corporation (hereinafter IBM), stated through press releases and other forms of advertisements that its new product was highly reliable. IBM represented on its Web site that each product came with an express warranty. The plaintiff allegedly experienced hard drive failure and suffered permanent data loss. The plaintiff commenced this action individually and on behalf of others similarly situated, alleging that IBM violated General Business Law §§ 349 and 350, breached its express warranty, and was unjustly enriched. IBM thereafter successfully moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint. Leave to replead was granted with respect to the plaintiff's individual causes of action, but not with respect to those on behalf of the proposed class.

Reliance is not an element of a claim under General Business Law § 349 ( see Stutman v. Chemical Bank, 95 NY2d 24, 29; Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 NY2d 20, 26; Singh v. Queens Ledger Newspaper Group, 2 AD3d 703; Hazelhurst v. Brita Prods. Co., 295 AD2d 240, 242). However, the plaintiff must show that the defendant's material deceptive act caused the injury ( see Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, supra; Singh v. Queens Ledger Newspaper Group, supra). Here, the plaintiff failed to plead causation with sufficient specificity to withstand dismissal. Although the plaintiff cites particular misleading statements by IBM regarding the reliability of the IBM Deskstar 75GYP, he nowhere states in his complaint that he saw any of these statements before he purchased or came into possession of his hard drive. If the plaintiff did not see any of these statements, they could not have been the cause of his injury, there being no connection between the deceptive act and the plaintiffs injury ( see Pelman v. McDonald's Corp., 2003 WL 22052778, 2003 US Dist LEXIS 15202 [SD NY, Sept. 3, 2003]). Dismissal of the plaintiff's claims under General Business Law § 350 to recover damages for breach of express warranty, which do require proof of reliance, was also proper, since the plaintiff failed to allege that he relied on the statements or any advertisement at the time of his purchase ( see Murrin v. Ford Motor Co., 303 AD2d 475; Andre Strishak Assoc. v. Hewlett Packard Co., 300 AD2d 608; McGill v. General Motors Corp., 231 AD2d 449, 450). Moreover, the failure to plead the name of the seller of the computer component rendered defective the plaintiff's causes of action alleging breach of express warranty and unjust enrichment ( see Miller v. Schloss, 218 NY 400; Murrin v. Ford Motor Co., supra).

In view of the substantive insufficiency of the complaint, we do not reach the appellant's remaining contentions.


Summaries of

Gale v. Int'l Business Machines Corp.

Appellate Division of the Supreme Court of New York, Second Department
Jul 26, 2004
9 A.D.3d 446 (N.Y. App. Div. 2004)

holding that the plaintiff failed to show causation because he did not allege that he saw any of the allegedly deceptive statements

Summary of this case from Ward v. Theladders.com, Inc.

finding failure to plead a claim under Section 349 where, although the plaintiff pled facts as to particular misleading statements, he did not state that he saw any statements before purchasing the relevant item, noting that, without seeing the statements, they could not have been the cause of his injury

Summary of this case from Cummings v. FCA US LLC

affirming dismissal of GBL claims

Summary of this case from Chimienti v. Wendy's Int'l

affirming dismissal of claim because plaintiff did not plead that he ever saw any of the allegedly misleading statements

Summary of this case from Johannessohn v. Polaris Indus., Inc.

rejecting GBL §§ 349 and 350 claims for lack of causation where the consumer did not claim to have seen the alleged misrepresentations

Summary of this case from In re Ford Motor Co. E-350 Van Prods. Liab. Litig.

dismissing a claim where the plaintiff did not allege "that he saw any" misleading statements "before he purchased or came into possession" of the product at issue

Summary of this case from Rice v. Electrolux Home Prods., Inc.

discussing causation in the context of N.Y. GBL § 349

Summary of this case from Argabright v. Rheem Mfg. Co.

discussing causation in the context of N.Y. GBL § 349

Summary of this case from Argabright v. Rheem Mfg. Co.

dismissing section 349 claim brought by plaintiff who alleged he purchased hard drive based on manufacturer's misleading statements; complaint did not allege plaintiff saw the manufacturer's statements before he purchased hard drive and thus failed to plead causation

Summary of this case from Stoltz v. Fage Dairy Processing Indus., S.A.

dismissing § 349 claim and noting that “[i]f the plaintiff did not see any of these statements, they could not have been the cause of his injury, there being no connection between the deceptive act and the plaintiff's injury.”

Summary of this case from Fenerjian v. Nongshim Co., Ltd.

dismissing claim where buyer did not allege that she saw the misleading statements prior to purchase

Summary of this case from Douyon v. N.Y. Med. Health Care, P.C.

In Gale, the court dismissed a § 349 claim because the plaintiff never alleged he saw any of the allegedly deceptive statements before he purchased his computer hard drive.

Summary of this case from In re Hydroxycut Marketing Sales Practices Litig

In Gale v. Int'l Bus. Mach. Corp., 9 A.D.3d 446, 781 N.Y.S.2d 45, 45 (2004), the court dismissed plaintiffs claim under GBL 349 concerning deceptive statements by a defendant regarding the reliability of a hard disk drive.

Summary of this case from Pennsylvania Employee v. Zeneca, Inc.

dismissing a deceptive business practices cause of action for failing to allege specific misrepresentations which caused the plaintiff to be misled and suffer damages as a result

Summary of this case from Sutherland v. Remax 2000

In Gale v Intl. Bus. Mach. Corp. (9 AD3d 446, 447 [2nd Dept 2004]), the Court held that causation is lacking where a plaintiff did not see any allegedly false statements that he claimed were deceptive acts.

Summary of this case from Hetcher v. Citibank
Case details for

Gale v. Int'l Business Machines Corp.

Case Details

Full title:ERIC GALE, Appellant, v. INTERNATIONAL BUSINESS MACHINES CORPORATION…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 26, 2004

Citations

9 A.D.3d 446 (N.Y. App. Div. 2004)
781 N.Y.S.2d 45

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