Diop v Daily News, L.P.

[*1] Diop v Daily News, L.P. 2006 NY Slip Op 50671(U) [11 Misc 3d 1083(A)] Decided on February 27, 2006 Supreme Court, Bronx County Salerno, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2006
Supreme Court, Bronx County

MOUSTAPHA DIOP, ANGELA A. DEOLEO, and MELISSA D. CLARKE, Individually and on behalf of all others similarly situated, Plaintiffs,

against

DAILY NEWS, L.P. and D.L. BLAIR, INC., Defendants.



13777/05

George D. Salerno, J.

Defendants' Daily News, L.P. (Daily News) and D.L. Blair, Inc., (Blair) by separate motions, move pursuant to CPLR § 3211(a)(1) and (a) (7), to dismiss plaintiffs' complaint.

This lawsuit and numerous other lawsuits were brought by individuals who participated in a game called "Scratch n' Match" widely advertised by the Daily News and administered by the co-defendant Blair. The instant lawsuit and several other lawsuits brought by game participants all arose from a mistake that occurred during the week March 13, 2005 to March 19, 2005 when the Daily News mistakenly published the wrong winning numbers on March 19, 2005. Plaintiffs in the case at bar, as a result of the printing error, claim to have won amounts ranging from $500.00 to $100,000.00.

Plaintiffs' complaint pleads causes of action for negligence, gross negligence, deceptive consumer practices and relief in the form of a permanent injunction to prevent the Daily News from proceeding with a consolation drawing scheduled to take place on or about July 8, 2005. This Court previously denied plaintiffs motion for a preliminary injunction to enjoin the Daily News from holding a consolation drawing for the members of the public who mistakenly believed they were prize winners. Plaintiffs' eighth cause of action which sought a permanent injunction to preclude the Daily News from holding a consolation drawing was rendered moot by this Court's refusal to grant plaintiffs' request for a preliminary injunction and plaintiffs right to this relief was in any event ruled upon when this court denied plaintiffs request for provisional relief.

Defendants' motions are grounded on documentary evidence (CPLR3211(a) (i). When a pre-answer motion to dismiss a complaint is made the opposing affidavit from the plaintiff will be considered only for the limited purpose of remedying defects in the complaint although there may be circumstances when the opposing affidavit by the plaintiff will conclusively establish the absence of a viable cause of action (see Rovello v. Orofino Realty Company 40 NY2d 633 357 NE2d 970, 389 NYS2d 314).

It is well established that a court's inquiry when faced with a motion to dismiss, premised on the contention that the complaint fails to a state a cause of action, is narrowly defined. The court must "accept the facts as true .... and determine simply whether the facts alleged fit within any cognizable legal theory," (Marone v. Marone 50 NY2d 481, 484 413 NE2d 1154, 429 NYS2d 592 [citations omitted] ;Leon v. Martinez 84 NY2d 83, 87-88 638 NE2d 511, [*2]614 NYS2d 972 and the complaint must be liberally construed ( New York Trap Rock Corp., v. Town of Clarkstown 297 N.Y. 77, 85 N.E. 873; DeMarco Bros. v. Consolidated Edison Co., 8 AD3d 99). This Court finds that opposing affidavit merely embellishes the allegations of the complaint and for the reasons stated in this opinion plaintiff's complaint can not stand. Although a complaint which may be sufficient on its face, where the factual claims are flatly contradicted by documentary evidence (Gertler v. Goodgold 107 AD2d 485, affd 66 NY2d 946; Doria v. Masucci 230 AD2d 764, 646 NYS2d 363, or if the documentary evidence conclusively establishes a defense to the claims asserted by plaintiff (Leon v. Martinez, supra ), the complaint must be dismissed.

Defendants submission is supported by plaintiffs verified complaint, a "true and correct" copy of the "Scratch n' Match Game Card" which contains the official rules published by the Daily News governing, inter alia, the process by which winners of the contest are selected. The documentary evidence submitted by defendants conclusively established a defense to plaintiffs' claims.

Pending this Court's determination Counsel for the Daily News, following the submission, provided this Court with decisions rendered by courts of concurrent jurisdiction which dismissed similar claims made by other game participants who also mistakenly thought that they had won one of the prizes applicable to contest winners. For example, this Court was appraised of three decisions rendered by Justice Carolyn Demerest granting motions to dismiss founded upon documentary evidence for failure to state a cause of action. (Sargent v. Daily News, Index No. 9071/05, Sup Ct., Kings County, December 15, 2005; McFarlane v. Daily News, Index No. 17237/05 Sup Ct., Kings County, December 15, 2005 and Henry v. New York Daily News Index No. 20627/05, Sup Ct., Kings County December 14, 2005).

In addition, this Court was also informed by counsel for the Daily News of nine (9) decisions issued on November 9, 2005 by Justice Herman Cahn in New York County in which Justice Cahn dismissed the claims brought by various plaintiffs against the Daily News holding that the "same issues presented in this action were previously decided in an action entitled Linda Greenwood v. Daily News LP, 8 Misc 3d 1002(A) Sup Ct., Nassau County, Austin J."

Plaintiffs Contract Claims

Plaintiffs cause of action for breach of contract is based on conclusory assertions that their participation in the Daily News prize contest established a binding and enforeceeable contract which allegedly defendants breached by failing to pay the dollar amounts "indicated on their March 19, 2005 Scratch n' Match Game Card". This legal argument presents the issue whether contract law governs the relationship between the contest sponsor, Daily News, and plaintiffs who entered the prize contest administered by Blair and if so whether plaintiffs by their participation accepted all of the terms and conditions of the contract.

Construing plaintiffs contract claim most favorable to plaintiffs, as this Court must do in the face of defendants' motion to dismiss, (219 Broadway Corp. v. Alexander's Inc., 46 NY2d 506, 387 NE2d 1205, 414 NYS2d 889),it is well settled that in order for the plaintiffs to prevail on their contract claim, plaintiffs must establish the formation of a contract (which occurred when plaintiffs entered the Daily News prize contest) and defendants failure to perform by withholding payment of the prizes that plaintiffs believe they are entitled to receive. Granting plaintiffs' contention that their entry into the Daily News contest and defendants failure to recognize plaintiffs as contest winners fails, however to acknowledge a further essential element [*3]of contract law which requires the contracting parties to be bound by all the terms and conditions of their agreement.

The decision rendered by Judge Lynch in Ermolaou v. Flipside Inc., (not reported in F. Supp 2d 2004, 2004 WL 503758 [SDNY] is particularly informative regarding the issue whether plaintiffs participation by entering the contest included acceptance of all its conditions. A lottery player, Sally Ermolaou, sued the operator of a lottery game when the operator refused to award the game prize based on the erroneous transmittal by electronic mail that plaintiff had selected winning numbers. Judge Lunch held that the contest rules govern plaintiffs breach of contract claim stating:

"It is hornbook law that the rules of a contest

constitute a contract offer and that the participant's

entering the contest "constitute[s] an acceptance of

that offer, including all of its terms and conditions."

Fujishima v. Games Mgmt. Servs., 110 Misd.2d

970, 443 NY2d 323, 327 (S.Ct. Queens County

1981). See also Endres v. Buffalo Auto. Dealers

Ass'n Inc., 29 Misc 2d 756, 217 NYS2d 460, 462

(S.Ct. Erie County 1961); Ritz v. News Syndicate

Co., 16 Misd,2d 1013, 183 NYS2d 850 (1st Dept.

1959). Even accepting plaintiff's minimalist version

of the contract terms (pick the winning numbers and

receive the offered prize money), plaintiff's claim

for breach of that contract must fail, because the

record evidence clearly establishes that Ermolaou

did not select the winning numbers for March 22,

2001, and therefore Flipside's refusal to award her

the prize money is no breach."

Therefore, the rules of a contest applicable to the Daily News Scratch n' Match contest constitutes an offer to plaintiffs to enter into a contract according to the terms and conditions set forth in the contest rules (see Truong v AT & T 243 AD2d 278, 663 NYS2d 16 [1st Dep't 1997]; Fujishima v. Games Management Services 110 Misc. 970, 443 NYS2d 323; Endres v. Buffalo Auto Assn. 29 Misc 2d 756, 217 NYS2d 460). Here, the official rules were clear and unequivocal and specifically provided for the very situation which initiated the lawsuit brought by plaintiffs. The pertinent portion of the rules which accompanied each card printed in the Daily News states:

"In the event of a printing production or other error, or the

distribution of an irregular game card occurs, neither the Daily News, LP, D.L. Blair Inc., their affiliated companies and agents shall have any liability. If due to printing, production or other error, more prizes are

claimed than are intended to be awarded for any prize level

per the above, the intended prizes will be awarded in a random

drawing from among all verified and validated prize claims

received for that prize level. In no event will more than the [*4]

stated number of prizes be awarded....Winners agree that

Daily News, LP, D.L. Blair, Inc., their affiliated companies

and agents shall not be liable for injuries or losses of any

kind resulting from participation in any aspect of this game

or acceptance of or use of any prize. By participating in this

promotion, game players agree to be bound by these Official

Rules and the decisions of the judges, which are final."

Consequently, plaintiffs, by virtue of their participation in the prize contest, accepted all of the terms and conditions of the contest. Manifestly, contract law governs the relationship between the defendants and plaintiffs and the contract claims pleaded by plaintiffs fail to state a cause of action since the contest rules unequivocally precluded plaintiffs from asserting that they were prize winners. (see Truonq, supra ; Greenwood v. Daily News, 8 Misc 3d 1002A; Fujishima, supra ; Endres v. Buffalo Auto Dealers, supra ; Ritz v. New Syndicate Co. 16 Misc 2d 1013, 183 NYS2d 850 [1st Dept. 1959] ).

Plaintiffs Negligence Claims

Plaintiffs' complaint pleads various causes of action for negligence or gross negligence built around terminology which charges defendants with recklessness, gross mistake and carelessness. Negligent conduct which plaintiffs attribute to a printing mistake can not be imposed unless the scope of the duty owed to plaintiffs can be identified. The weakness presented by plaintiffs' tortious allegations lies in the failure to assert a duty owed to them which must exist separate and apart from plaintiffs' contract claim. The universally accepted principle brilliantly identified by Justice Cardozo; " The risk reasonably to be perceived defines the duty to be obeyed...." (Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E.99) requires a finding in the first instance that there is a duty which is a legal issue for the court to decide. (see De Angeles v. Lutheran Medical Center, 58 NY2d 1053, 449 NE2d 1053, 462 NYS2d 626). It is clear from a review of the negligence allegations that plaintiffs are attempting to convert their contract claim into tortious conduct.

The Court of Appeals in Clark - Fitzgerald Inc. v. Long Island Railroad Co., 70 NY2d 382, 516 NE2d 190, 521 NYS2d 653, restated the well established principle that "a simple breach of contract is not be considered a tort unless a legal duty independent of the contract itself has been violated" (citation omitted)

Here, although plaintiffs are asserting negligence claims which this court must when faced with a motion addressed to the sufficiency of the complaint extend every favorable inference (see Marone v. Marone, supra ), plaintiffs negligence claims premised on a breach of contract claim can not stand. The infirmity presented in plaintiffs' complaint is the absence of allegations establishing that a legal duty independent of the contract has been violated (see New York University v. Continental Ins. Co. 87 NY2d 308, 316; 662 NE2d 763, 639 NYS2d 283 {87 NY2d 308} .) Moreover, while a tort may arise from the breach of a legal duty independent of the contract merely alleging that the breach of contract arose from lack of due care will not transfer an alleged contract breach into a tort (Sommer v. Federal Signal Corp. 79 NY2d 549, 593 NE2d 1365, 583 NYS2d 957.

Plaintiffs General Business Law Claim

Plaintiffs' fifth cause of action allege that defendants failure to insure the accuracy of the [*5]numbers published as winning numbers constituted a violation of the General Business Law 349 and or §350. The broad protective intent of General Business Law §349 declares unlawful deceptive acts or practices in the conduct of any business in the State of New York. General Business Law §350-a(1), provides in relevant part that [the] "term" false advertising' means advertising.....[which is] misleading in a material respect." Defendants, assert, incorrectly, that plaintiffs' pleading fails to allege their reliance upon the misleading or false advertisement, citing McGill v. Gen. Motors Corp., 231 AD2d 449, 450, 647 NYS2d 209 as authority for this principle.

The element of reliance was reviewed by the Court of Appeals in Stutman v. Chemical Bank 95 NY2d 24, 731 NE2d 608, 709 NYS2d 892 where the court unequivocally stated "as we have repeatedly stated, reliance is not an element of section 349 claim. (see, Small v. Lorillard Tobacco Co., supra , at 55 [ intent to defraud and justifiable reliance by the plaintiff are not elements of the statutory claim']; Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, supra , at 26 [ the statute does not require proof of justifiable reliance']; see also, Givens, Supp Practice Commentaries, Mc Kinney's Cons Laws of NY, Book 19, General Business Law §§ 349-350, 2000 Cum Pocket Part, at 223 [section 349 contains no requirement that an injured party show reasonable reliance on erroneous statements...in order to obtain relief'] ). The plaintiff, however, must show that the defendant's material deceptive act' caused the injury (Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, supra , at 26)."

Plaintiffs fail to acknowledge that the contest rules clearly indicate that mistakes in designating the winning number are possible. The rules, as previously identified in this opinion, provide what happens if a mistake occurs from a "printing, production or other error" and the remedy where more prizes are claimed for any prize level. Furthermore, plaintiffs have not demonstrated that the error which admittedly caused considerable public excitement is deceptive or conduct which is actionable under General Business Law §350. Therefore, the false advertising claim set forth by plaintiffs in the fifth cause of action is dismissed.

Accordingly, since all of plaintiffs' claims have been dismissed, defendants' motions dismissing plaintiffs' complaint are granted.

This constitutes the decision and order of this Court.

Dated: 2-27-06

J.S.C.