Hurst v Horse Power Auto Sales, Inc.

[*1] Hurst v Horse Power Auto Sales, Inc. 2009 NY Slip Op 51577(U) [24 Misc 3d 138(A)] Decided on July 14, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 14, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1009 Q C.

Gregg R. Hurst, Appellant,

against

Horse Power Auto Sales, Inc., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered March 10, 2008. The order, insofar as appealed from, denied plaintiff's motion for summary judgment.

Order, insofar as appealed from, affirmed without costs, and, upon searching the record, summary judgment granted to defendant dismissing the complaint.

In this action based upon an alleged violation of General Business Law § 349 arising out of plaintiff's lease of a used motor vehicle from defendant, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both the motion and cross motion. Plaintiff appeals from so much of the order as denied his motion for summary judgment.

General Business Law § 349 declares unlawful "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state." In order to establish a prima facie case under this section, a plaintiff must demonstrate that the challenged act or practice of the defendant was consumer-oriented, that it was misleading in a material way, and that the plaintiff suffered injury as a result of the deceptive act (see Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25 [1995]). Since the conduct of the defendant "must have a broader impact on consumers at large," private contract disputes which are unique to the parties do not fall within the ambit of the statute (id. at 25; see also Biancone v Bossi, 24 AD3d 582 [2005]; Teller v Bill Hayes, Ltd., 213 AD2d 141 [1995]). In our opinion, the record establishes that the challenged act was not consumer-oriented, but rather a private matter limited to these parties.

Although defendant did not cross-appeal from so much of the order as denied its cross motion for summary judgment dismissing the complaint, this court has the authority to search the record and, if warranted, to grant summary judgment to a non-appealing party (CPLR 3212 [b]; see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]). Accordingly, upon searching the record, this court grants defendant summary judgment dismissing the complaint. [*2]
Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009