American Express Centurion Bank, A Del. Banking Inst. v Greenfield
Decided on February 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and LIPPMAN, JJ
2005-766 N C.
American Express Centurion Bank, A Delaware Banking Institution, Respondent,
Joan Greenfield, Appellant.
Appeal from an order of the District Court of Nassau County, First District (Martin J. Massell, J.), entered on November 16, 2004. The order, insofar as appealed from, granted the branch of plaintiff's cross motion that sought to dismiss defendant's counterclaim.
Order, insofar as appealed from, affirmed without costs.
A motion to dismiss a counterclaim pursuant to CPLR 3211 (a) (7), should be denied if the factual allegations contained in the pleadings establish a cognizable cause of action. The counterclaim should be construed liberally and the facts alleged therein should be accepted as true together with any sworn allegations in opposition to the motion to dismiss (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 ). Applying these principles, the court below properly granted the branch of the cross motion seeking to dismiss the counterclaim since defendant failed to allege facts establishing a claim that plaintiff violated the Fair Debt Collection Practices Act (see Jones v Ocwen Fed. Bank, 147 F Supp 2d 219 ).
To the extent that defendant seeks to recover damages for plaintiff's alleged violation of General Business Law § 601 (8), said counterclaim fails to state a cause of action as defendant cannot maintain a private cause of action against plaintiff for such a violation (see General Business Law § 602; Varela v Investors Ins. Holding Corp., 81 NY2d 958, 961 ). Consequently, dismissal of the counterclaim was warranted.Defendant's remaining contentions are either unpreserved for appellate review or without merit. [*2]
Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: February 27, 2006