Bromberg Law Off., P.C. v Itkowitz & Harwood

[*1] Bromberg Law Off., P.C. v Itkowitz & Harwood 2006 NY Slip Op 52193(U) [13 Misc 3d 1240(A)] Decided on October 17, 2006 Civil Court Of The City Of New York, New York County Moulton, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 17, 2006
Civil Court of the City of New York, New York County

Bromberg Law Office, P.C., Plaintiff,

against

Itkowitz & Harwood, Defendants.



61178/06

Peter H. Moulton, J.

In this small claims action, plaintiff law firm asserts that defendant law firm sent plaintiff an unsolicited fax containing an advertisement for office space in violation of 47 USC § 227, the Junk Fax Protection Act (the "Act").

The two page fax in question had a cover page listing Nita Prasetyo as the sender. The name and address of defendant appear in the upper left corner of the cover sheet. Defendant is also listed as the "company" under Prasetyo's name on the cover sheet. The second page of the fax contains the name "Lawsuites.net" at the top in large letters, and contains pictures of various offices

47 USC § 227(b)(1) states, in relevant part:

It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States

***

(C) to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless

(i) the unsolicited advertisement is from a sender with an established business relationship with the recipient;

(ii) The sender obtained the number of the telephone facsimile machine through

(I) the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or

(II) a director, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution ....

The Act provides for a private right of action. (47 USC § 227[b][3].)

Ms. Prasetyo testified that she works for both defendant Itkowitz & Harwood and for Law Suites, which is a d/b/a of Court Services. Court Services is owned by one of the partners in defendant firm. She testified that it was a mistake to send out the solicitation with an Itkowitz & Harwood fax cover sheet. She further stated that she obtained fax numbers for the solicitation from the Lawyer's Diary. Prasetyo testified that she never called an entities' phone number before sending [*2]a fax for Law Suites

Brian Bromberg testified on plaintiff's behalf. He stated that he had no established business relationship with defendant. There was no evidence contradicting that testimony. While there is no "and" between sub (i) and sub (ii) quoted above, it is clear from the statute that the subsections are to be read in the conjunctive. The FCC interprets the Act this way and its interpretation of the statute is entitled to deference. (FCC Report and Order and Third Order on Reconsideration, FCC 06-42 [available on TCPALaw.com].) Accordingly, because there is no established business relation between the parties, plaintiff is entitled to damages.

Under 47 USC § 227(b)(3) provides that a plaintiff may recover actual monetary loss caused by a violation, or $500, whichever is greater. In addition, the statute provides for treble damages "[i]f the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection." The court finds that plaintiff did not establish the heightened scienter necessary for the award of treble damages.

For the reasons stated, the clerk shall enter judgment for $500, together with costs.

Dated: October 17, 2006

_______________________

Peter H. Moulton, C.C.J.