Eva Chen Fine Jewelry, Inc. v Recovery Racing IX, LLC

Eva Chen Fine Jewelry, Inc. v Recovery Racing IX, LLC 2023 NY Slip Op 06511 Decided on December 20, 2023 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 20, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
JOSEPH J. MALTESE
LINDA CHRISTOPHER
CARL J. LANDICINO, JJ.
2021-01375
(Index No. 705775/20)

[*1]Eva Chen Fine Jewelry, Inc., appellant,

v

Recovery Racing IX, LLC, etc., et al., respondents.

Christopher Chen, Flushing, NY, for appellant.

Biedermann Hoenig Semprevivo, P.C., New York, NY (Steven A. Andreacchi and Svetlana V. Siforova of counsel), for respondents.

DECISION & ORDER

In an action to recover damages pursuant to General Business Law §§ 198-a and 349, and for fraud and breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Phillip Hom, J.), entered January 15, 2021. The order granted the defendants' motion for summary dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In May 2014, the plaintiff, a corporation, purchased a 2014 Maserati Ghibli from Maserati of Bergen County, an authorized Maserati dealership owned at the time by the defendant Recovery Racing IX, LLC (hereinafter Recovery Racing). The subject vehicle was used solely by the plaintiff's principal and only employee, Eva Chen. After seeking repairs with respect to the vehicle's air conditioning system on six occasions, the plaintiff commenced this action to recover damages pursuant to General Business Law §§ 198-a and 349, and for fraud and breach of contract. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion. The plaintiff appeals.

General Business Law § 198-a provides certain protections to consumers of new vehicles. The statute defines a "consumer" as "the purchaser, lessee or transferee" of a vehicle that is "used primarily for personal, family or household purposes" (id. § 198-a[a][1]). "A finding that the vehicle is used primarily for personal, family, or household purposes entitles the purchaser to 'consumer' status, even if that purchaser is a corporation" (Kornblatt v Jaguar Cars, 172 AD2d 590, 591 [citations and internal quotation marks omitted]).

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action pursuant to General Business Law § 198-a, by demonstrating that the plaintiff was not a "consumer" that would be entitled to relief under the statute (see Matter of Volkswagen of Am. v Friedman, 166 AD2d 709). The defendants submitted evidence establishing that the vehicle was purchased, paid for, and insured in the name of the plaintiff, and the plaintiff had claimed the vehicle as a 100% business use deduction on its corporate tax returns since the year the vehicle was purchased (see Kornblatt v Jaguar Cars, 172 AD2d at 590-591). In opposition, the plaintiff failed to raise a triable issue of fact.

The defendants further established their prima facie entitlement to judgment as a matter of law dismissing the cause of action pursuant to General Business Law § 349. "A cause of action under General Business Law § 349 requires evidence that 'a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice'" (Aracena v BMW of N. Am., LLC, 159 AD3d 664, 666, quoting Koch v Acker, Merral & Condit Co., 18 NY3d 940, 941 [internal quotation marks omitted]). "'The single shot transaction, which is tailored to meet the purchaser's wishes and requirements, does not, without more, constitute consumer-oriented conduct for the purposes of this statute'" (JP Morgan Chase Bank, N.A. v Hall, 122 AD3d 576, 581, quoting North State Autobahn, Inc. v Progressive Ins. Group. Co., 102 AD3d 5, 12). Here, the defendants demonstrated that the alleged conduct attributed to them did not constitute consumer-oriented conduct pursuant to General Business Law § 349 (see Aracena v BMW of N. Am., LLC, 159 AD3d 664, 666; Nafash v Allstate Ins. Co., 137 AD3d 1088, 1090). In opposition, the plaintiff failed to raise a triable issue of fact.

The Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging fraud. "'The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation . . . and damages'" (Gruber v Donaldsons, Inc., 201 AD3d 887, 888, quoting Mesivta & Yeshiva Gedolah of Manhattan Beach v VNB N.Y., LLC, 197 AD3d 703, 705). A cause of action alleging fraud must be pleaded with specificity (see CPLR 3016[b]; Brualdi v IBERIA, Lineas Aereas de España, S.A., 79 AD3d 959, 960-961). Here, the plaintiff failed to plead fraud with specificity, as the complaint did not identify any specific material misrepresentation of fact, the person or entity who made such alleged misrepresentation, or any alleged knowledge of any party who made the misrepresentation of its falsity (see Nafash v Allstate Ins. Co., 137 AD3d at 1090; Brualdi v IBERIA, Lineas Aereas de España, S.A., 79 AD3d 959, 960-961; Dumas v Fiorito, 13 AD3d 332).

The defendants also established their prima facie entitlement to judgment as a matter of law on the cause of action alleging breach of contract. "A breach of contract cause of action fails as a matter of law in the absence of any showing that a specific provision of the contract was breached" (Gianelli v RE/MAX of N.Y., Inc., 144 AD3d 861, 862). "A cause of action to recover damages for breach of an express warranty requires proof of reliance" (J.C. Constr. Mgt. Corp. v Nassau-Suffolk Lbr. & Supply Corp., 15 AD3d 623, 623). Here, the defendants established, prima facie, that the plaintiff failed to identify any provision of any contract or any specific representation made by Recovery Racing in connection with the sale of the vehicle on which it relied and was allegedly breached (see Parker v Raymond Corp., 87 AD3d 1115, 1117). Further, "'[n]o implied warranty will extend from a manufacturer to a remote purchaser not in privity with the manufacturer where only economic loss and not personal injury is alleged'" (Aracena v BMW of N. Am., LLC, 159 AD3d at 666, quoting Lexow & Jenkins v Hertz Commercial Leasing Corp., 122 AD2d 25, 26). The defendants established, prima facie, that the plaintiff was not in privity with the defendants Maserati North America, Inc., and Ferrari Maserati of Long Island, and alleged only pecuniary loss, not personal injury (see Aracena v BMW of N. Am., LLC, 159 AD3d at 666). In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contention need not be reached in light of our determination.

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

DUFFY, J.P., MALTESE, CHRISTOPHER and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court