Remis v Fried

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[*1] Remis v Fried 2011 NY Slip Op 50479(U) Decided on January 18, 2011 Supreme Court, New York County Ling-Cohan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 18, 2011
Supreme Court, New York County

Todd Remis, Plaintiff,

against

Kurt B. Fried A/k/a Curt B. Fried, Daniel L. Fried, Harold Gillet, Lawrence H. Gillet, H & H Photographers A/k/a H & H Photographers & Video Productions, And H & H Photographers of New York, Inc., Defendants



116050/09



Attorney for Plaintiff:

Goodwin Procter LLP

Frederick R. McGowen, Esq.

The New York Times Building

620 Eighth Avenue

New York, New York 10018

(212) 813-8800

Attorney for Defendants:

Law Office of Peter Wessel, PLLC

Peter Wessel, Esq.

270 Madison Avenue, Suite 1203

New York, New York 10016

(212) 532-9700

Doris Ling-Cohan, J.



This is a case in which it appears that the "misty watercolor memories" and the "scattered pictures of the smiles . . . left behind"[FN1] at the wedding were more important than the real thing. Approximately seven years ago, plaintiff married his now-divorced wife, with photographs taken by defendants. Although the marriage did not endure, plaintiff's fury over the quality of the photographs and video continued on.

Background[*2]

On November 29, 2003, plaintiff Todd Remis entered into a contract with defendant H & H Photographers a/k/a H & H Photographers & Video Productions and/or H. & H. Photographers of New York, Inc. (collectively, "H & H") to photograph and video his wedding ceremony and reception, which took place on December 28, 2003.[FN2] The contract price was $4,100, of which $3,500 was paid by plaintiff at the time he entered into the contract, leaving a balance of $600.

In his complaint, plaintiff alleges that employees of H & H represented that H & H's photographers were personally familiar with the location of the wedding and would provide professional photography and video services for the entire wedding event. After initiating his divorce action [FN3], plaintiff sues for his "actual damages in excess of $48,000"[FN4], with interest, punitive damages not less than "three times plaintiff's actual damages", and for attorneys' fees. Am Compl at 11. Plaintiff alleges that the services he received were unacceptable, as to: (1) quality of the proofs of the photographs; (2) length, alleging that the entire wedding was not videotaped as promised; and (3) the photographer's unfamiliarity with the wedding site. Plaintiff further alleges that after he expressed his dissatisfaction, H & H represented they would compensate him for their misrepresentations and their unacceptable and unprofessional work product, but failed to do so. Further, plaintiff alleges that after several years, H & H improperly threatened collection efforts and harassed plaintiff.

Plaintiff commenced this action, alleging the following causes of action against all defendants: (1) breach of contract; (2) negligent misrepresentation; (3) violation of the New York General Business Law pertaining to false advertising, misleading trade practices and prohibited collection practices; (4) intentional misrepresentation/fraud; (5) punitive damages; (6) attorneys' fees; (7) negligent infliction of emotional distress; and (8) intentional infliction of emotional distress.

Discussion

A. Motion to Dismiss

All defendants now move (motion sequence 001) to dismiss the action, based on statute of limitations, for failure to state a cause of action, and failure to plead with particularity, pursuant to CPLR 3211(a)(5) and (7) and 3016(b).

Preliminarily, the Court notes that whether plaintiff will ultimately prevail is not the issue before this Court at this time. "In determining . . . a motion [to dismiss], it is not the function of the court to evaluate the merits of the case." Khan v Newsweek, Inc., 160 AD2d 425, 426 (1st Dep't 1990); see also 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509 (1979). "On a motion to dismiss for insufficiency, it is not the function of the court to evaluate the merits of a case." Carbillano v Ross, 108 AD2d 776, 777 (2d Dep't 1985). Instead, on a motion to dismiss [*3]pursuant to CPLR 3211, the pleading is given a liberal construction and the facts alleged therein are accepted as true. Leon v Martinez, 84 NY2d 83, 87 (1994). The motion to dismiss will only be granted if, upon giving the non-moving party every favorable inference, the facts do not fit within any cognizable legal theory. Id. at 87-88.

1. Breach of Contract

Defendants move to dismiss the first cause of action for breach of contract for failure to state a claim. At this juncture, the cause of action is not dismissed as it has been sufficiently pleaded. The following elements must be established on a breach of contract claim: (1) a valid and enforceable contract; (2) the plaintiff's performance of the contract; (3) breach by the defendant; and (4) damages. See Noise in Attic Prods., Inc. v London Records, 10 AD3d 303, 307 (1st Dep't 2004); Furia v Furia, 116 AD2d 694, 695 (2d Dep't 1986). Defendants contend that plaintiff cannot adequately support his stated amount of damages and, thus, has failed to properly state a breach of contract claim. However, viewing the alleged facts in the light most favorable to plaintiff, which the Court must do at this juncture, plaintiff has adequately alleged the element of damages, in addition to the other elements. Plaintiff alleges that he entered into a contract for photography services in the amount of $4,100 and paid $3,500 at the time he entered into the contract, and alleges he was damaged by having failed to receive adequate services. Although plaintiff seeks damages beyond the contract price [FN5], at a minimum, plaintiff has adequately alleged damages in the amount of the contract. Thus, the breach of contract claim has been sufficiently pleaded.

2. Negligent Misrepresentation

Defendants move to dismiss the second cause of action asserted in the complaint based on statute of limitations grounds and for failure to plead with adequate particularity. The second cause of action for negligent misrepresentation has a three-year statute of limitations. See CPLR 214; see also Colon v Banco Popular North Am., 59 AD3d 300, 301 (1st Dep't 2009). Plaintiff entered into the contract with defendants on November 29, 2003 and the wedding photography services at issue in this lawsuit occurred on December 28, 2003. Since this action was commenced on November 13, 2009, more than three years later, plaintiff has failed to bring the claim for negligent misrepresentation within the time period allowed.

While plaintiff argues that the tort causes of action are continuing wrongs and, thus, the statute of limitations has not run on those claims, such argument is unpersuasive. Plaintiff contends that defendants' harassment and threats to collect the purported debt years after the wedding occurred are sufficient to find defendants' tortious actions to be recurring, which prevented the statute of limitations from running. However, the second cause of action for negligent misrepresentation is really based on statements allegedly made by defendants in either entering the contract or shortly thereafter. In any event, more than three years have passed and the claim is barred. Thus, as to the second cause of action for negligent misrepresentation, it is dismissed as the statute of limitations has run.

3. GBL § 349 — Deceptive Acts and Practices

Defendants move to dismiss the third cause of action for violation of the New York [*4]General Business Law, based on plaintiff's alleged failure to state a cause of action and failure to state the claim with particularity. Plaintiff brings this suit under GBL § 349, which governs deceptive acts and practices. The elements of a cause of action under GBL § 349 are: (1) the challenged act or practice was consumer-oriented; (2) it was misleading in a material way; and (3) plaintiff suffered injury as a result of the deceptive act. Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, N.A., 85 NY2d 20, 24—25 (1995).

With respect to the first element, a party:

claiming the benefit of the section must, at a threshold, charge conduct that is consumer oriented. The conduct need not be repetitive or recurring but defendant's acts or practices must have a broad impact on consumers at large; [p]rivate contract disputes unique to the parties would not fall within the ambit of the statute.

New York Univ. v Continental Ins. Co., 87 NY2d 308, 320 (1995) (internal quotations and citations omitted). As the Court of Appeals noted in Oswego Laborers' Local 214 Pension Fund, acts which are the subject of the statute must be "consumer-oriented in the sense that they potentially affect similarly situated consumers." 85 NY2d at 27. The test is "whether a reasonable consumer in plaintiffs' circumstances might have been misled by the . . . conduct." Id.

Viewing the allegations in the light most favorable to the non-moving party, plaintiff has failed to adequately state a claim for violation of GBL § 349 and the cause of action is dismissed. Plaintiff has alleged that "[d]efendants engaged in prohibited practices in asserting a purported right to collect, and threatening to collect, amounts which defendants knew were not justly due or legally chargeable against plaintiff." Am Compl ¶ 55. However, it is undisputed that there was a contract between plaintiff and H & H. Thus, if the Court accepts plaintiff's view, in every breach of contract case, a GBL § 349 claim could be asserted when one tries to collect on the contract, which could not have been the intent.

Further, as to plaintiff's allegations that "Defendants' misleading, deceptive and prohibited practices in marketing its services to the general public have a broad impact on consumers at large" and have caused plaintiff to suffer damages (id. ¶¶ 54-58), such allegations are general legal conclusions and speculation, rather than concrete facts from which this Court could infer a marketing scheme with broad impact or an injury to consumers at large. Plaintiff has failed to sufficiently demonstrate that defendant's alleged deceptive acts or practices are consumer-oriented within the meaning of the statute; rather, this is a private contract dispute unique to the parties. See New York Univ., 87 NY2d at 320.

4. Intentional Misrepresentation/Fraud

With regard to the fourth cause of action for intentional misrepresentation/fraud, defendants move to dismiss based on statute of limitations, for failure to state a cause of action and failure to plead with particularity. The statute of limitations period for the fourth cause of action for intentional misrepresentation/fraud is the longer of six years from the wrongful conduct or two years from when the party knew, or should have discovered, the fraud. See CPLR 213; Rostuca Holdings, Ltd. v Polo, 231 AD2d 402, 403 (1st Dep't 1996). As the statute of limitations is the greater of two or six years from when the fraud was discovered, and this action was commenced less than six years from when the contract was entered into and the services performed, this claim is not barred by the statute of limitations. [*5]

Defendants also argue that plaintiff failed to allege that the statements were made with scienter, that is, that defendants made statements that they knew were false, and, thus, plaintiff failed to state a cause of action and/or plead with particularity. Supplemental Def Br at 5. Contrary to defendants' argument, however, the amended complaint does contain such allegations: "Defendants made false representations, promises, guarantees and threats to plaintiff . . . willfully and knowingly." Am Compl ¶ 61 (emphasis added). Plaintiff's allegations that the representations were made by defendants and known to be false are sufficient to adequately state a claim of fraud and prevent dismissal at this juncture. Thus, the motion to dismiss the fourth cause of action is denied.

5. Punitive Damages and Attorneys' Fees

Defendants move to dismiss the fifth cause of action for punitive damages and the sixth cause of action for attorneys' fees for failure to state a cause of action, arguing that they are not separate causes of action and are not recoverable if the General Business Law claim is dismissed. The motion to dismiss the fifth and sixth causes of action is granted. Plaintiff's requested relief of punitive damages and attorneys' fees is predicated on plaintiff's cause of action for defendants' violation of GBL § 349, which specifically allows for recovery of punitive damages and attorneys' fees. Since plaintiff's cause of action based on GBL § 349 has been dismissed herein, the fifth and sixth causes of action are also dismissed.

6. Negligent Infliction of Emotional Distress and

Intentional Infliction of Emotional Distress

With regard to the seventh cause of action for negligent infliction of emotional distress and the eighth cause of action for intentional infliction of emotional distress, defendants move to dismiss for failure to state a cause of action and on statute of limitations grounds. The allegations set forth in the complaint fail to rise to the level necessary to bring claims for intentional and negligent infliction of emotional distress. A party bringing a claim for infliction of emotional distress, whether intentional or negligent, must show "allegations that the defendant's conduct is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Berrios v Our Lady of Mercy Med Ctr, 20 AD3d 361, 362 (1st Dep't 2005) (internal quotations omitted). In this case, plaintiff fails to allege actionable conduct that would rise to the level of negligent or intentional infliction of emotional distress. A simple breach of contract for failing to provide adequate photography services is not the kind of "outrageous" conduct necessary to support a claim for infliction of emotional distress; neither does a claim of attempting to collect payment wrongfully. Id. Thus, the seventh and eighth causes of action are subject to dismissal under CPLR 3211(a)(7), for failure to state those causes of action.

7. Individual Defendants

With respect to all causes of action, defendants seek to dismiss the complaint as to the individual defendants, contending that they are not proper parties as plaintiff contracted with the corporate entity. All the individual defendants assert that they are not properly in this lawsuit because the contract and services at issue are between plaintiff and H & H, not them individually, and at least one of them is no longer an employee of H & H.

In opposition, plaintiff contends that since H & H Photographers is registered by the Secretary of State as a partnership, and Kurt Fried and Harold Gillet are listed as partners of the [*6]partnership, they may be personally liable for the debts of the partnership and, thus, are valid parties herein.[FN6] Plaintiff has attached as an exhibit a copy of the partnership documents located in the Bronx County Clerk records, in support of his position that they should not be dismissed from the case. See Frederick R. McGowen Affirmation in Opp, Exh C.

A review of the contract appears to indicate that plaintiff contracted with defendant H & H Photographers & Video Productions, a partnership, and not the corporate entity, as is argued by defendants. Although defendants first contend that the individual defendants should be dismissed from this case, in their Reply, it is admitted that: "While Defendants contest the allegations of Plaintiff that would make them individually liable, should any causes of action survive this motion, Defendants acknowledge that a triable issue of fact exists concerning the issue of whether the natural parties should be defendants herein." Peter Wessel Reply Affirmation at 3. At this juncture, and in light of the supporting documentation, allegations by plaintiff and acknowledgment by defendants, it is premature to dismiss such defendants listed as partners. Thus, the motion to dismiss is denied as to Kurt Fried and Harold Gillet.

With regard to defendants Daniel Fried and Lawrence Gillet, they are not listed as partners in H & H and there is no dispute that they are solely employees of H & H. Plaintiff alleges that, in negotiating the contract, plaintiff spoke to these employees. Although allegedly these are the individuals with whom plaintiff interacted and negotiated, employees of a corporation or a partnership cannot be held personally liable absent piercing the corporate veil, which is not relief being sought herein. See Albstein v Elany Contr. Corp., 30 AD3d 210, 210 (1st Dep't 2006). Thus, all causes of action against Daniel Fried and Lawrence Gillet are dismissed.

B. Motion for Default Judgment

In motion sequence number 002, plaintiff moves for a default judgment against defendant H. & H. Photographers of New York, Inc., arguing that this defendant failed to appear in this action. All defendants made a pre-answer motion to dismiss (motion sequence number 001) and are being represented by the Law Office of Peter Wessel, PLLC. However, in executing a stipulation consenting to an adjournment on motion sequence number 001, the Law Office of Peter Wessel, PLLC signed as attorney for all defendants, except that H. & H. Photographers of New York, Inc. was accidentally omitted.

The motion for a default judgment against H. & H. Photographers of New York, Inc. is denied. The notice of motion for the pre-answer motion to dismiss (motion sequence number 001) was clear that it was being made to dismiss "each and every Defendant." Not. of Mot. at 1. As plaintiff argues that defendant H. & H. Photographers of New York, Inc. did not appear, and not that the motion was untimely, defendant H. & H. Photographers of New York, Inc. is not in default. Although H. & H. Photographers of New York, Inc. was mistakenly omitted from the stipulation on motion sequence number 001 extending the return date on defendants' motion, it is clear that it was not intentional or willful conduct by such defendant and that it always intended to defend this action. Pricher v City of New York, 251 AD2d 242, 242 (1st Dep't 1998).

Accordingly, it is

ORDERED that defendants' motion to dismiss (motion sequence number 001) is granted [*7]to the extent that the second, third, fifth, sixth, seventh and eighth causes of action are dismissed as to all defendants; and it is further

ORDERED that the first and fourth causes of action are dismissed as to defendants Daniel Fried and Lawrence Gillet with costs and disbursements; and it is further

ORDERED that plaintiff's motion for a default judgment against defendant H. & H. Photographers of New York, Inc. (motion sequence number 002) is denied; and it is further

ORDERED that the remaining defendants are directed to serve and file an answer to the complaint within 30 days after service of a copy of this order with notice of entry, and all sides shall complete discovery expeditiously; and it is further

ORDERED that within 30 days of entry of this order, defendants shall serve a copy of this order with notice of entry upon plaintiff.

Dated:

DORIS LING-COHAN, J.S.C. C:\htformat\f5047910.txt Footnotes

Footnote 1: Referencing the song The Way We Were, written by Alan Bergman and Marilyn Bergman, performed by Barbra Streisand.

Footnote 2: Motion sequence numbers 001 and 002 are consolidated for disposition herein.

Footnote 3: The Court notes that plaintiff is now divorced from his wife since April 28, 2010, yet, nonetheless continues this lawsuit for the alleged failure to provide adequate photography services at the now estranged couple's wedding.

Footnote 4: $48,000 appears to be the cost of the wedding. See Am Compl 26.

Footnote 5: It appears that plaintiff is also suing for the entire cost of the wedding, which he is unlikely to be awarded.

Footnote 6: Plaintiff provided no case law on this issue.