Millard v Michael Eigen Jewelers

[*1] Millard v Michael Eigen Jewelers 2004 NY Slip Op 51505(U) Decided on September 15, 2004 Supreme Court, New York County Shafer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2004
Supreme Court, New York County

ANTOINETTE MILLARD, Plaintiff,

against

MICHAEL EIGEN JEWELERS, Defendant.



100443/04

Marilyn Shafer, J.

Plaintiff commenced this action to recover certain monies from defendant. Defendant operates a retail jewelry store located on Madison Avenue in New York County. Plaintiff was a customer of defendant's store. On May 22, 2002, plaintiff began making purchases of various pieces of jewelry from defendant's store. With each piece of jewelry that plaintiff purchased from defendant, plaintiff was given a written appraisal by defendant's principal, Robert Eigen. Plaintiff claims that between May 22, 2002 and July 11, 2003, plaintiff purchased nearly $236,000.00 worth of jewelry at defendant's store. Each written appraisal provides that defendant "estimate the value as listed for insurance or other purposes at the present current market value. The opinions of Appraisers concerning value vary up to 25%. This company does [*2]not promise to buy the article from you at the Appraised value or at any faction of the Appraised value." Each written appraisal further provides that "[t]he foregoing Appraisal is made and accepted upon the express understanding that NO Liability or Responsibility is incurred by the Appraiser in giving same." In June 2003, plaintiff alleges that she performed an audit of the jewelry she purchased from defendant and ascertained that defendant had overcharged her in the amount of $12,034.25 for her purchases. Plaintiff further alleges that she made a $4,000 loan to defendant so that defendant could repay a vendor for her restocking fee. Defendant maintains that plaintiff paid it $4,000.00 in an effort to dissuade defendant from suing plaintiff's married boyfriend, who had become obligated to defendant and was facing an imminent lawsuit by defendant.

Defendant now moves to dismiss plaintiff's complaint pursuant to CPLR §§3211 for failure to state a cause of action. As to plaintiff's first cause of action for conversion and third cause of action for negligence, defendant contends that there no working relationship or special duty which would trigger either a claim for conversion or negligence. With respect to plaintiff's second cause of action for breach of contract, defendant asserts that this cause of action is fictitious and unsupported and therefore, should be dismissed. As to plaintiff's fourth cause of action for misrepresentation, defendant claims that this cause of action is "nonsensical," but in any event, is defeated by the clear and unambiguous language contained in the jewelry appraisals requested and accepted by plaintiff.

Plaintiff cross-moves for leave to serve a second amended complaint which includes additional claims of misrepresentation by defendant and clarifies plaintiff's other claims, including causes of action for conversion, breach of contract, negligence and misrepresentation.

Second Amended Complaint

As a preliminary matter, it is settled law that permission to amend pleadings should be freely given (see CPLR 3025[b]). "The decision to allow or disallow the amendment is committed to the court's discretion" (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). CPLR §3025(b) provides that a court may grant leave to amend pleadings "at any time." "It is essential that a party seeking leave to amend a complaint demonstrate the merit of the proposed pleading" (Peretich v City of New York, 263 AD2d 410, 410 [1st Dept 1999]). "In addition, among the factors to be considered in these discretionary motions is the prejudice, if any, which would accrue to the defendant[s] upon the granting of the relief sought" (Rosenberg v New York University Hospital, 128 Misc 2d 90, 93 [Sup Ct, Special Term, NY Co., 1985]).

In the instant action, there is no prejudice to defendant since no depositions have been held and the note of issue has not been filed. Accordingly, plaintiff's second amended complaint is deemed served.

Motion to Dismiss

In a CPLR §3211 motion to dismiss, the factual allegations of the complaint are deemed true and the affidavits submitted on the motion are considered only for the limited purpose of determining whether the plaintiff has stated a claim, not whether plaintiff has one (Wall Street Associates v Brodsky, 257 AD2d 526 [1st Dept 1999]). It is well settled that a pleading shall be liberally construed and will not be dismissed for insufficiency merely because it is inartistically drawn (Foley v D'Agostino, 21 AD2d 60 [1st Dept 1964]) The relevant inquiry is whether the requisite allegations of any valid cause of action cognizable by the state courts can be fairly [*3]gathered from the four corners of the complaint (Id.). "Defects shall be ignored if a substantial right of a party is not prejudiced" (Id. at 65).

First Cause of Action

"Conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights" (Peters Griffin Woodward, Inc. v WCSC, Inc., 88 AD2d 883, 883 [1st Dept 1982]). "Where the property is money, it must be specifically identifiable and be subject to an obligation to be returned or to be otherwise treated in a particular manner" (Republic of Haiti v Duvalier, 211 AD2d 379, 384 [1st Dept 1995]). Deeming these allegations to be true and drawing all reasonable inferences from the submitted proof, this Court finds that plaintiff has stated a cause of action for conversion by alleging what was stolen, when and the approximate value of the property taken.

Second Cause of Action

Even construing the pleadings liberally, as a court must do on a motion to dismiss, plaintiff's second cause of action for breach of contract must be dismissed. Plaintiff's allegations are devoid of the factual support required by CPLR §3013, and must, therefore, be dismissed. Accordingly, the second cause of action for breach of contract is dismissed.

Third Cause of Action

To state a claim for negligent appraisal, plaintiff must establish that defendant made his negligent statement "with knowledge or notice that it will be acted upon" (White v Guarente, 43 NY2d 356, 363 [1977]). Additionally, the existence of a special relationship between the parties is required thereby creating a duty of care owed to plaintiff and entitling plaintiff to rely upon defendant's representations (Struna v Wolf, 126 Misc 2d 1031 [Sup Ct, Special Term, NY Co., 1985]). The "special relationship" can arise out of a contract, public calling or otherwise (Id. at 1035). In the instant matter, it is clear there existed a "special relationship" between plaintiff and defendant. While defendant claims its relationship with plaintiff is merely one of merchant and customer, the undisputed facts defeat this claim. Given the length of time plaintiff had been purchasing jewelry from defendant, the amount of jewelry plaintiff purchased from defendant, and the disputed "loan or settlement" of $4,000.00, there can be no question that this relationship created a duty of care to plaintiff. Deeming the allegations to be true and drawing all reasonable inferences from the submitted proof, this Court finds that plaintiff has sufficiently stated a cause of action for negligence.

Fourth Cause of Action

In order to "state a legally cognizable claim of fraudulent misrepresentation, the complaint must allege that the defendant made a material misrepresentation of fact; that the misrepresentation was made intentionally in order to defraud or mislead plaintiff; that the plaintiff reasonably relied on the misrepresentation; and that the plaintiff suffered damage as a result of its reliance on the defendant's misrepresentation" (PT Bank Central Asia v ABN Amro Bank, 301 AD2d 373, 376 [1st Dept 2003]). Here, plaintiff has alleged that prior to each of her purchases, Robert Eigen would represent that plaintiff was purchasing the piece at a discount while appraising the same piece of jewelry at the alleged current market price. Accepting the allegations as true and resolving all reasonable inferences that may be drawn from those allegations in plaintiff's favor, this Court finds that plaintiff has sufficiently stated a valid cause of action for fraudulent misrepresentation. [*4]

For the aforementioned reasons, it is hereby

ORDERED that plaintiff's cross-motion is granted to the extent that leave to amend the complaint is herein granted, and the second amended complaint in the proposed form annexed to the moving papers shall be deemed served upon service of a copy of this order with notice of entry thereof; and it is further

ORDERED that defendants shall serve an answer to the second amended complaint within 10 days from the date of said service; and it is further

ORDERED that defendant's motion to dismiss is granted and the second cause of action of the complaint is severed and dismissed and it is further

ORDERED that the remainder of the action shall continue; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This reflects the decision and order of this Court.

Dated:

J.S.C.

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