Heins v Public Storage

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Heins v Public Storage 2012 NY Slip Op 31852(U) July 11, 2012 Supreme Court, Suffolk County Docket Number: 09608/2008 Judge: William B. Rebolini Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Shorl F0l111Order SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY WILLIAM B. REBOLINI Justice Index No.: 09608/2008 Robert Heins, Plaintiff, Motion Seguencc No.: 008; MOT.D Motion Date: 3/28/12 Submitted: 4/19/12 -againstPublic Storage, a Maryland Real Estate Investment Trust, as Successor of Public Storage, Inc. and PS Orangeco, Inc., Defendants. Motion Seguence No : 009; XMOT.D Motion Date: 3/28/12 Submitted: 4/19/12 Attornev [or Plainti ff: Russ & Russ, P.c. 543 Broadway Massapequa, NY 11758 Attoll1ey Cor Defcndants: Cullcn and Dykman LLP 100 Qucntin Roosevclt Boulevard Garden City, NY 11530 Clerk ofthc Court Upon the lollowing papers numbered 1 to 100 read upon this motion to compel disclosure and cross mol ion to dismiss cause of action: Notice of Motion and supporting papers, I - 46; Notice of Cross Motion and SUPP0l1ing papers, 47 - 76; Answering Affidavits and SUPP0l1ing papers, 77 98; Replying AfJidavits and supPOlting papers, 99 - 100. ORDERED that the motion by plainti ff, Robel1 Heins, is granted only to the exlent that the attorneys for the pm1ies shall appear for a preliminary conference on August 29, 2012 at 9:30 A.M. (see 22 NYCRR § 202.12) to schedule disclosure consistent with the detcnnination herein, and such application is otherwise denied; and it is [* 2] Hl'ins \'. Public Storagc. ct al. Index 1\0.: 09608/2008 Page 2 ORDERED that the cross-motion by defendants. Public Storage. Inc., sued in this action as Public Storage. a Maryland Real Estate Investment T rust, as successor of Public Storage. Inc. and PS Orangeco, Inc .. is granted to the extent it seeks an order pursuant to CPLR 3211 (a) (7) dismissing plaintiff's claim under General Busll1cSS Law ~349 and such cross-motion is otherwise dellicd In August 2004, plaintltT Robert Hems allegcdly cntered into an agrccment wllh Publlc Storage, Inc. to lcase space at a scl f-storagc t~)cility !oc<lled on Sunrise II ighway ill Patchogue, New York. The leased space, mcasurlng approx 11l1ately5' x 10' and identi fied as Ene losed/Parking Space [)212, allegedly was used by plainti ff to store various personal items llleluding a record collection, paintl11gs, first edItion books and family members' personal effects. The monthly rental charges for the leased space allegedly were p<lid electronIcally rrom a bank account llluilltained by plaintiff and nonpmty Llllda Cox. In March 2007, Public Storage allegedly served a notice advising plamti rfthat his property was to be sold at public auction for nonpayment of rental fees. Upon receIpt OfSllCh notice, Cox allegedly went to the storage facility with bank records showing the rental fee had, in ract, been paid electronically to Public Storage. On March 15,2007, Public Storage allegedly noti fled plaintiff thai the February renial payment had been credited to his account. Later that same month. il allegedly sent plaintiff a notice advising that the rate for leasing storage space at the facility was increasing in May 2007. On March 31, 2007, the personal property stored by plaintiff in the space identified as Enclosed/Parking Space 0212 allegedly was auctioned by Public Storage's agent, defendant PS Orangeco, lnc., for a nomina! amount. On April 2, 2007, Cox allegedly returned to the facllitywith bank records showing the renl had been paid and was advised that the personal property had been sold. Pla1l1tifr allegedly wcnt to the facility the next day and saw that nearly all of the boxes of personal property stored in the leased space had been removed. S ubseq uelltl y, p Iainli 1'1' commenced this act i011La recover damages ft.)rtile alleged wrongful sale or his personal property. The first five causes of action set forth in the Third Amendcd ComplClint seck 10 hold Public Storage liable undcr the theories of ncgligence, converSIon, fj-aud, breach of contract and "wrongful salc" 111 VIOlation of Lien Law 182. The sixth cause of action seeks to hold both Public Stomge und PS Orangcco li<lble for violatIons of Len Law 182 and General BUSlllCSS Law *349. In <lddition, as part orthe fourth cause o!"action, pla111tiffsccks a judgment declaring "[he uncnforceabili1y or lllapplicability of any c1all11Cd'exculpatOl-Y' clauses or limitations of liability or disclaimer III any dallned rental agreemcnt." Defendants' answer dcmes nearly all oflhe allegations in the complaint and interposes numerous affimlative defenses, includIng thai the si.'\th cause of action docs not make out a cogl1lzable claim for deceptive business practices as it docs not allege a deceptive act or practice dirceted at the public at large. * * The branch of dclcndants· motion seeking dismIssal of the claim against them for VIOlation of Genera! Busincss Law *349 is granted. On a motion to dIsmISS. ··the complaint IS to be <lfTordecl ,I liberal constructioll, thc facts alleged arc presumed to be true, the plarntilTis atlorded the benefit of every I~\\'-orablc inferencc", and the court is to detenllll1e only whether thc j~\Cts as alleged fit within any cognizabk Icgal theory (see ESe I, 1/lC:. I' Cio/dmall, Sac/H. & Co" 5 NY3d II, 19 [* 3] Heins v, Public Storage, ('1 at, Index No,: 09608/2008 Page 3 [2005]; Leon ~'Martinez, 84 NY1d 83, 87-88 [1994]; Thomas~' Lasalle BilIlk N. A" 79 AD3d 1015,1017, [2d Dept 2010J). (Jcnera! Busl11cSS Lav,,' ~349 (a) provides that it is llnl;:nvflll to perform "(d]eccptivc acts or practices in the conduct of any business, trade or commerce or In the fUnllShll1g orany service In this stalc," Enacted to protect consumers, the statute illltlally \vas enf{')rceable only by the Attonlcy General. However, to expand its llse as a means of halting consumer frauds, the statute later was amended to allow actions by private plaintiffs, who may recover compensatory damages, limIted punitive damages, inJunctIve reliefand attonleys' fees (see General Business Law 0349 [11];Karlill t' IVFAm" 93 NY2d 282, 291 [1999]). To assert a clallTI under General Business Law ~349 (h), a plallltdf must allege that the defendant engaged in consumer-oriented conduct that IS materially mislcad1llg, and that plainti fCsufTered injury as a result of such deceptive act or practice (City ofNeH! York v Sllloke~'-SjJirits.C011l, fllc" 12 NY3d (116, 621 [2009]; see StlltlJUln v Chemical Balik, 95 NY2d 24 [2000]; Oswego Laborers' Local 214 Pension Fund l' Marine Midland Bank, S5 NY2d 10 [1995]; Emigrant Mtge, Co" fllc, v FitZjJatrick, 95 AD3d 1169 [2d Dept 1012]). A plaintiff SLllng ror deceptive acts or practices "need not show that the defendant committed the complamed-oC acts repeatedly ... but instead must demonstrate that the acts or practices have a broader impact on customers at large" (Oswego Laborers' Locttl214 Pellsion Fund t' Mariue Midland Bank, 85 NY1d 10, 25; see New York Univ. v COlltinentalfus, Co" 87 NY1d 308 [1995J). A plaintiff also must establish that the defendant "intended to deceive its customers to the customers' detriment and was successful in doing so" (Sallliento I' World Yacht Inc., 10 NY3d 70,81 [:::zOOS]). Signific,llltly, the statute IS not intended to turn a breach of contract uno a tort (Teller v Billy Hayes, Ltd., 213 AD1d 141, 14fl, [2d Dept 1995]) and pnvatecontract disputes unique to the parties do 110thdl within its ambIt (Oswego Laborers' Local 214 Peusion FUlld v Marille Midlalld Balik, 85 NY2d 20, 25). Here, the amended complall1t docs not allege that defendants cOllllllitted deceptive acts or practices thal had <lbroad impact on consumers at large (see Pr01l1atech, file. v A FG Group, fuc., 95 AD3d 450 [1 st Dcpt 2012]; Makuch v New York Cent, Milt. Fire Ius. Co" 12 AD3d 11 10 [4th Dept1004]). Signi fieuntly, the complaint docs not allege that Pubhc Storagc engaged in deceptive cond uct Iike Iy to m Islead conSUlllers 1casi ng storage space at ItS rucd ity and that such conduct caused plaintifr"s injury (see Gale v flJternatiollaI811s. Machille.\· Corp" 9 AD3d 446 [2d Dept 2004]; Andre Strishak &. Assoc. v Hewlett Packard Co., 300 AD2d 608 [2d Dept 2002]). In fact, the comp lalnt docs no( set forth the terms 0 l' the lease 8greelllen( (IIIeged 1 entered into by pIa int i 1'1' y Hild Publ1c Storage, nor docs it allege that such agreement was a standard form regularly used for customers of PubliC Storage. Instead. the allegations set forth In (he 5]xth cause of action arc b<lsed on the alleged breach by Public Sloragcorits statutory obligations under section 181 oft11e Lien Law in allegedly en forcl1lg its lien upon pla1llti ITs personal property. Moreover, the plainti ITs claim j{)r recovery under Gcncral Busl1less Law ~ 349m Listbe dismissed because it docs not sulliciently allege conduct having an impact on consumers at large. [n view of this determination, the branch or plainti frs motion seeking an order resolv1l1g all issues 111 his favor on the claim under General Business Law 34() must be denied. * [* 4] Ikills \I. Public Stlll·agl.'. ct al. Index No.; 09608/2008 flag/..' 4 As to the branches of plaintiffs and defendants' motions seeking an order eompellmg (l1sclosure, pmties to litigation are cntltled to "full (l1sclosure of all evidence matenal and necessary in the prosecution or defense of an action, regardless of the burden of proof' (CPLR 31 01 [a]). This proviSIon has been liberally construed to reg lure disclosure "of any facts bearing on the controversy' which .... assIst [the parties'J preparatlOll for trial by sharpenll1g the issues and reducing delay and vill prolixity" (Allell v Crowell-Collier Puh/. Co., 21 NY2d 403, 406 [1968]). "I fthere is any possibility that the ll1fOnnatlO1l is sought in good faith for possible use as cvidencc-lH-chlcf or 111 rebuttal or for cross-examll1ation, it should be considered 'evidence material ... in the prosecution or defense'" (ld. at 407, (jllorillg CPLR 31(1). Nonetheless, litigants do not have carte blanche to demand production of any documents or other tanglble items that they speculate might contain useful Information (see Geffller)' Mercy Med. Or., 83 AD3d 998 [2d Dept 2011 J; Fosler v HerbaIS/epO)! COI1'., 74 ADJd 1139 [ld Dcpt 2010], Gilmall & Ciocia, Il1c, v Walsh, 45 AD3d 531 [ld Dept 2007]; Vyas )' Campbell, 4 ADJd 417 [2d Dept 2004]). Thus, a party WIll not be compelled to comply with disclosure demands that are unduly burdensome, lack specificity, seck privileged lllatenal or Irrelevant information, or arc otherwise improper (see e.g. Geffner v Mercy Med. Or" 83 AD3d 998 [2d Dcpt 2011]; Gilman & Cioda, Illc. v Walsh, 45 AD3d 53'! [2d Dcpt 2001']; Astudillo 1'St. Frallcis-Beacon J:."xtelldedCare Facility, IIIC., 12 ADJd 469 l2d Dept 2004], CrazvtowII rumiture v Brooklyn Unioll Gas Co., 150 AD2d 420 [2d Dcpt 1989]). Here ..plalnti ff's sweepll1g demands lor "colvorate compliance reports, internal audit reports, !"15km<ll1<lgement reports ... general or in-house counsel reports _ .. supporting any of the answers to Interrogatories," 'lmJinutcs of meetings of [Public Storage's] Board of DIrectors or Board committees or executives refernng to problems witl1 ... accounting of customer payments .. , publIC sales in New York. auctions in New' York," and documents "referring to or rclating to" to Public Storage's "rules, policies and procedures with regard to alleged dellllquent accounts" are palpably improper, as they seck 111tcrlwl busll1ess records containl11g privileged ll1<lterial and corporate documcnts that arc confidentIal and not relevant to the instant litigation, especially In I1ght of the dismissal of the clalill for deceptive business practices (see Asludillo I' St, Fral/cis-Beacol1 Extended Care FaciWI', Inc., 12 AD3d 4e) pd Dept 2004]; C{)1JI1JIllJli~)' ASSJI. l' WarreoDel'. HoffmaJl & Assoc., 4 AD3d 755 1:4th Depll004], Bett(lII)' Gcico Gell.llIs. Co., 296 AD2d 469 [2d Dcpt1002], 11,dismissed ()()NY2d 552 [1002]; Saratoga Harne.~s Raci/lg v Roemer, 274 A D2d 887 [3d Dept lOOO]: Wood I' Sanli's Rest. COIJJ., 47 AD2d 870 [1st Dept 1975J; see also Makos L 'II/youei CMflucli, II/C. I' ,\'luuj, 59 AD3d 408 [2d Dcpt 20091; First Am. COll/mercial B(l11corp, Illc. \' SaatcIii & Saate/Ii Row/afld, fllC., 56 AD3d 1137 [4th Dcpt 2008J). Contrary to the conclllsory allegations by plainti rrs coul1sel, defendants' demand lor access to the personal property stored in the leased space rcmainlllg in plall1ti Ws possession or control ancr the ductlon IS not palpably improper, as such evidcnce clearly is relevant to their defensc oftlll.'; act ion. r lIrLller. dc/Cndants' demands for copies of tile speci fic documents in plainti rf' s possessIOn that support the clements or his causes of action and claims for damages properly seck cvidence '·material and necessary" to the defense (CPLR 3101, see gellerally AI/ell I' Croll'ell-Collier Pub/. Co., 2] NY2d 403 [1968]) As lo defendants' dcmand Jor an Itemized list oflhc personal property stored in the leased space ovcr which plaintiff currently retains possession and control. however, [* 5] l1l'ins \'. Publil' Storage. et al. Index :\'0.: 09608/2008 Page 5 items must be pre-existing and tangible to be subject to discovery and production and a party cannot be compelled to create ncw documents or itcms ill response to a disclosure demand (Rosado I' Mercedes-Benz ofN. Alii.. 103 AD2d 395. 398 [2d Oept 1984]; see Ferc!licl, )1 Parsons Hosp., 88 AD2d 903 [2d Dept 1982]; Slm'ellburg CVlp. v North Shore Equities. 76 AD2d 769 [1st Oept 1980)). Thus. a party may be required to produce only those Items "which arc 111 the possessIOn, custody or control" of that party (see CPLR 3120 [IJ; (Jatz v La)'bllnl, 9 AD3d 348 [2d Dept 2004]; Castillo I' Henry Schein, Inc., 259 AD2d 651 ['2d Dept 1999J; Fores/ire )1 Inter-Stop, 1IIc., 211 AD2d 751 [2d Dept J 995]; Lear )1 New York Helicopter Corp., 190 A02d 7 l2d Dcpt 1993J; Rosado I' Mercedes-Benz (~fN. Alii., 103 AD2d 395 [2d Dept 1984]). Pursuant to CPLR J 133. if the party servcd with interrogatories is a coq)oration, the answers to such intclTogatorics shall bc in writing, under oath, "by an officer, director, member, agent or employce having thc information." Here, the responses to plamtiffs interrogatories served by Public Storage and PS Orangeco do not comply with CPI.R J 133, as they were answered by then ultol11ey acting "upon in fonnation and belief," rather than by an orrtcer, agent or employee with the requisite knowledge. Likewise, plaintiffs answers to derendants' written interrogatories wcre improperly rumishcd by his attomcy. [t is noted that plaintirrs vcrification of the supplemental response to defcndants' lllterrogatorics did not cure such defect. Datedl (!llu I' FINAL I)ISI'OSITI{)N x i'lON-FlNAL DISI>OSITION

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