Documente Academic
Documente Profesional
Documente Cultură
ANNED ON 112712011
PART ,?6
MOTION DATE
-v- n
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MOTION SEQ. NO.
The following papera, numbered 1 to 11' were read on this motion *for &
&u(f h m ~ ~
This is a case in which it appears that the “misty watercolor rneinories’’ and the Lcscnttered
pictures o f h e smiles . . . left behind”’ a1 lhe wedding were more iniprtant than the real thing.
Approximately seven years ago, plaintiff’married h i s nowdivorced wife, with photographs taken
by defendants. Although the marriage did not endure, plaintift’s fuiy over the quality of the
Backproud
On November 29, 2007, plaintiff‘3‘odd licmis entered inlo a contracl with defendant H&H
Photographers dlda H&W Pliotograplicrs & Video Productions andor H.&M. Photographers of
New Y ork, Inc. (collectively, “H&H’’) to photograph and video his wedding ceremony and
reception, which took place on December 28, 2003 ‘T’hecontract pricc was $4,100, of which
’ Referencing the song ’The Way We Were, written hy Alnn Bergman and Marilyn
Rergmnn, performed by Barbra Streisand.
Motion sequerice numbers 00 1 and 002 are consolidatod for disposition herein.
$3,500 was paid by plaintiff at the lime he: entered into the contract, leaving a balance of $600.
photographers were personally F-itniIiarwith the lvcatioii of the wedding and would provide
professional photography aid video services Cor the entjre: wedding event. After initiating his
divorce action3, plaintiff sues for his “actixul damages in excess of $48,000”4, with interest,
punitive damages not lcss than “threc times plaintiff7s actual damages”, and for attorneys’ fees.
Am. Coinpl at 1 I . Plaintiff alleges 1.ha.1the services hc received were unacceptable, as to: (.1)
quality oftlie proofs of the photographs; (2) length, alleging that the entire wedding was not
kideotaped ;ts promised; and (3) the photogmplrer’s uizfnrriiliarity with the wedding site. Plai.ntiff
hrther alleges that after hc expressed his dissatisfacljon, H&H represented they would
compensate hiin 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
Plaintiff commenced this action, alleging the following cmscs of action against all
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defendarits: (1) breach of contract; (2) negligcnt misrepresentation; (3) violation ofthe New Y orli
General Business Law pertaining to ,fala: advertising,, misleading trade practices and prohibited
fees; (7) negligent infliction of emotional distress; and (8) intentional infliction of emotional
distress.
3
The Court mtes that plaintit’fis now divorced from his wife since April 28, 2010, yet, :,..
nonetheless continues this lawsuit for the alleged failure 1.0 provide adequate photography
services at the now estranged couple’s vvedding.
4
$48,000 appears to be the cost oEtlie wedding. ,!See Am Compl 26.
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A. Motion to Uistnir~&
All defendants now move (motion scquerice 001) to dismiss the action, based on statute of
limitations, for failure to state a causc of action, a i d fiii1iu.eto plead with p~~rticularity,
pursuant to
Preliminarily, the Court notes thal wlwthcr. plaintiff will ultimately prevail is not the issue
before this Court at this time. “In delermiaing . . . a motion [to dismiss], it is not the function of
the CULLIT to evaluate the merits of the case.” Khan v Nmwveek, lac , 160 h D 2 d 425, 426 (1 st
Uep’t 1990); scc also 219 Broodway (:‘nrp ’17 Alexmder ’s, I m . ,46 NY2d 506, SO9 (‘1979). “On a
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motion to dismiss for. insufficiency, it is not the f h m i o n of the court to evaluate the merits of a
cmc.’’ Carhilimo ‘v R m s , 108 A.D2d 7’76, ‘777 (2d Dep’t 1985). Instead, on a motion to dismiss
pursuant to CPLK 32 1 1, h e pleading is given cl liberal constrcrcti.oa and the facts alleged therein
are accepted as true. Leon 1, hiwtinez, 84 NY2d 83, 87 (1 994). The motion to dismiss will only
Defendants move to dismiss the :first cause o f action for breach of contract for failure to
state a claim. At this juncture, the cause o f action is not dismissed as it has been sufficiently
pleaded. The following elements must tie established on a breach of contract claim: (1) a valid
and enforceable contract; (2) the plaintiffs perfomlance ofthe contract; (3) breach by the
defendant; and (4)damages. See Noise in A l l k Pruds., bic. v London Records, 10 RJXd 303, 307
[ 1st Dep’t 2004); Furia v Fzrria, 1 I6 AD2d 694, 695 (2d Dep’t 1886). r)efe‘enduntscontend that
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plaintiff cannot adequately support his slo.led iiirwun~of damages and, thus, has failed lo properly
state a breach of contract claim. I-Iowrver, viewing the alleged facts in the light most favorable to
plairitiff, which the Court must do at t h i s juncture, plaiiitifi' has adequately alleged the eleinexrt of
damages, in addition to the other elements. PlainIiFf 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 hiled lo receive adequate services. Although
plaintiff seeks damages beyond the contract price5, at a minimum, plaintiff has adequately alleged
damages in the amount o€the contract. 'Ilzus, 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 groiuids and f i r failure to plead with adequate particularity. The second
C B U S ~of action for negligent misrepresentution has a klree-year statute of limitations. See C'PLR
214; see ulso (,'(>Ion Banco Pcppuhr Nurih Am., 59 AD3d 300, 301 (1st Dep't 2009). Plaintiff
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entered into the contract with defendanls on November 24,2003 and the wedding photography
services at issue in this lawsuit occurred on 13eceniber 28, 2003. Since this action was
commenced on Nuveinbet. 1 3,2009, more tliari thee years later, plaintiff has failed lo bring the
While plajiitiH argiies that the 1013 causes ol' action arc continuing wrongs and, thus, the
statute of limitations has not run on those claims, such axgument is unpersuasive. Plaintiff
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It appears that plainti IT is also suing (in the cntirl: cost US: the wedding, which he is
unlikely to be nwarded,
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conlends that defendants’ harassment a i d threats to collect the purported d.ebt years after the
wedding occurred are sufficient to find dtlt‘endants’ tortio‘us actions to be recurring, which
prevented the statute of liniilations from mnning. I-lowever, the second cause of action lor
entering th.e contract or sliortly thereafter. In any event, more than. three years have passed and the
claim is baned. Thus., as to the second cause o f action for negligent misrepresentation, it is
Defendants move to dismiss the third cause o f action for violation of the New York
General Business Law, based OD plaintiffs alleged failure 1.0 state a cause of a c h n and failure to
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state the claim with particularity. Plaintiff brings this suit under GBL 13 349, which governs
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deceptive acts and practices. The elements of a cause o-Emtion under GBL. 349 are: (1) the
challenged act or practice was consumer-orienteilI (2) it was misleading in a material way; and (3)
plaintiff suffered injury as a result of the deceptive act. Oswego Laborers ’ Local 2 / 4 Pension
New Yurlc IJoiv.11 C’ontinmfalIiis. C’u.,87 NY2d 308, 320 (1905) (internal yuoiations ,and ~
acts wlzich are the sub-jectof be statute rnusl be ‘~COnsUrncr-cirieiitedin the sense that they
potentially affect similarly situated consumers.’’ 85 NY2d at 27. ‘The test is “whether a
reasondble consumer in plaintiffs’ circumstances nlight have been misled by the . . . conduct.” Id.
Viewing tlie allegations in the light mosi favorable to the noti-moving party, plaintiff has
failed to adequately state a claim for violation of‘GR1, 8 349 and the cause of action is dismissed.
Plainti5 has alleged that “rd]ef‘endants engaged in praliibi ted practices in asserting a purported
right to collect, and threatening to collect, arnouiils which defendants knew were not justly due UI
legally chargeable against plaintiff.” Am Compl 7 5 5 . Ilowever, it is uiidisputed that there was a
contract between plaintiff nnd H&H. ‘Oms, if the rourt accepts plainiii’f’s view, in breach
of contract case, a GBI>cj 349 clam could be asserted whzn m e tries to collect on the contract,
large” and have caiised plaintiffto suffer daniages (id 77 54..58), such allegations are general
legal conclusions and speculation, rather thaxi concrete f x t s from which this Court could infer a
marketing scheme with broad impact (71 an injury to cunsimwrs at large. Plaintiff has failed to
suflkiently dernorlstrale that de kndmt’s alleged deceptivc acts or practices are consumer-oriented
within the meaning of the st:ltutc; rather, this IS a priv~ittecontract dispute unique to the parties.
4.Intentional Mis~epreseiitntioi~/Fraud
defendants move to dismiss based on statute of limitntions, for failure to state a cause of a c t j m
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and failure to plead with particularity. The statutc of limitations period for the fourth cause of
action for intentioiial misrep~esentatioilfraudis the longer of six years from the wrongful conduct
or IWO years from when die party knew, or should have discovered, the fraud. Sce CPLR 21 3:
Rostuca Holdings, Ltd v Polo, 23 1 AD2d 402, 403 ( 1st Ckp’t 1996). As the statute of‘linzitations
is the greater of two or six years .from when the fraud was discovered, and this action was
commenced less than six years from wlien the contrgct was entered into and the: services
Dekndants also argue that plaintifr failed to allege that the statements were made with
scienter, that is, that defendants made stakments that they knew were false, and, thus, plaintiff
failed to state a cause of action and/or plead with particularity. Supplemental Des Rr at 5.
C,ontrary to defenddnts’ argument, however, the amended coinplaint does contain such
allegations: “Defendmls made false raprcsentations, promises, guarantees and hreatu to plaintif€.
. . willfulIy and knowingly.” Am CompllI 61 (emphasis added). Plaintiff>s allegations that the
represeiitatians were madc by defendants and known to be fdse are sufficient to adequately state a
claim of fraud and prevent dismissal a l this juncture. ‘Thus.the motion to dismiss the fourth came
of action is denied.
Dekndanls move to dismiss the tifill cause of action for punitive damages and the sixth
cause ol’tlclioii For attorneys’ fees lor fail~irelo stale ;z cause of’action. arguing that they are not
separate causes of action and are not recoverable If lhz General Business IAW claim is dismissed.
The motion to dismiss the fifth and sixth Causes o f action IS granted. Plaiiittrff s requested reliefof
punitive damages atid attorneys’ fees is predicated on plaintiffs cause oP action for defendaiits’
violation of GBL 9 349, which specifically allows fur- rccovery of punitive damages arid atiorneys’
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Pees. Since plaintiffs cause 01action based on UBL, 5 349 has been dismissed herein, the lifih
and sixth causes of action are also dismissed.
With regard to the seventh cause of actioir Cor negiigcilt infliction of emotional distress and
dismiss fofclr failure to state a cause or actiori and 011 statute of limitations grounds. The allegations
set forth in the complaint fail tu rise io tlii: levcl necessary to bring cl,2ims for intentional and
negligent infliction of enioiional distrcss. A party bnnging a claim for inlliction of emotional
distrcss, whether intentioiial or negligent. must show “allqptions that the defendant’s conduct is
30 outrageous in character, and so extrem.e i.n degree, RS to go beyond all possible bounds of
Rerrios v Our h d v of’Mcrcy &fed CCr, 20 AD3d 36 1 36;! (1st Dep’t ZOOS) (internal quotations
omitled). In this case. plaiiitii’f fails to allege actionablc conduct that would rise to the Level of
negligent or inlmtionczl infliction of einolioizal distress. A simple breach of contract for €‘ailing to
provide adequate photography services ts no1 the kind of “outrageous” conduct necessary to
support a claim for infliction oi crnotionizl disi rcss; neither does a claim of attempting to collect
payment wrongfully. Id. Thus, 1he seventh and eighth causes of action are subject to dismissal
7. bidividrral Defendants
With respect to all causes of action, defendants seek 10 dismiss the complaint as to the
individual defendants, contending that they are riot proper paslies as plaintiff contracted with the
corporate entity. All the iildividual defkntlantx assert that they are not properly in tliis lawsuit
becaustl the contract and sewices at issue are betwecii 1~1aiiitifTand H&H, not them individually,
In opposition, plaintiff coratends that since El[ & 1-1 Photographers is registered by the
Secretary of State as a pa.rhiership,and Kurt Flied and Harold Gillet are listed as parhers oftlie
partnership, they may be personally liable for the debts of the partnership and, thus, are valid
the Bronx Couiity Clerk rccords, in support of his position that they should not be dismissed froin
A review of the contract appears to indicate that plaintiff c,vntracted with defendant H & €4
Photographers & Video Productions, ;i partnership, and riot the corporate cnt,ity, as is argued by
defendants. Althuugh dcfendants firs1 ccmtend that the individual defeendants shou.lclbe dismissed
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from this case, in their Reply, it is admitt.ed that: “While Defendants contest the allegations of
Plaintiff that would nialce hein individually liable, should any causes of action survive this
motion, Defendants acknowledge that a i-riableissue of h c t exists concerning the issue ofwhether
the natural parties should be defendants berein.” Peter Wessel Reply Affirniation at 3. At this
Thus, the motion to dismiss is denied a to Kurt Fried anti Harold GilleL
With regard to defendants Dauiel Fried and 1,awrence Gillet,they are not listed as partners
in H&l-Z and there i s no dispute that they are solely employees of H&H. Plaintiff alleges that, in
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negotiming the contract, pldntifl spoke to these employees, Although allegedly these are the
partnership cannot be held personally liable absent piercing the corporate veil, which is not relief
being snuglit herein. See AIbstdiz v Elany Cnnfr. Corp 30 AD3d 210, 210 (1st Dep’t2006).
Thus, all causes of action against Daniel Pried a i d Lawrence Gillet are dismissed.
II.&H. Photographers 01’ New York, h c + ,arguing that this defendant failed to appear in this
action. All defendant3 made R pre-aiswer motion to dismiss (motion sequence number 001) and
are being represented by tlie Law Office of Peter Wessel, PLLC. However, in executing a
stipulation consenting to a n adjournmenl‘OR motion sequence number 001, the Law Office of
Peter Wessel, PLLC signed as attorney for all defendants, except that H.&H. Photographers of
The motion for R default judgment against kI.&H. Photographers oCNew York, h c . is
denied. The notice o f motion for the prc-answer motion to dismiss (motion sequence number
00 1) was clear that it was being made to dismiss “each and every Defendant.” Not. ol‘Mot. at I .
As plaintiff argues thal defendant H.&H. Photographers of New York, Inc. did not appear, and not
ithat the motion was unlimely, defciidrmi FI.&H. Photographers nf‘Ncw York, Inc. is not in default.
Although H.&l-I. Photographers oiNew York, Lnc. was inislakeilly omitted from the stipulatxon 017
motion sequence number 00 1 extending the return date on defendants’ motion, it is clear that it
was not iiiteiitioiial or willful conduct b-9 such defcndant and that it always intended to defend this
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Accordingly, it is
iomEF%D that defendants' motion to dismiss (motion sequence number 001 } is granted
to the &#tentthat the secund, rhird, fifth, sixth, sevenlli and eighth causes of action are dismissed
OFUIERED that the iirst and fvilrth causes of actiton are dismissed as to defendants Daniel
ORDERED that, plaintifPs motion for a default judgment against defendant H.&H.
FhotaR@eru ofNew York, Tnc. (motion sequciice number 002) is denied; and il is firther
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OFUIERED that the remaining defendants are directed to serve nnd file an answer lo the
complajnt within 30 days after service oi'a copy of this order with notice of entry, and all sides
ORDERED that within 30 days of entry of this order, defendants shall serve a copy of this
Dated: