Airey v. Remmele

• Decision Date: 15 October 2012
• Citation: 2012 N.Y. Slip Op. 22299,38 Misc.3d 420,953 N.Y.S.2d 822
• Parties: Charles AIREY, Plaintiff, v. Amy REMMELE, Individually and d/b/a Peak of Success, LLC, Defendants.
• Court: New York Supreme Court

38 Misc.3d 420

953 N.Y.S.2d 822

2012 N.Y. Slip Op. 22299

Charles AIREY, Plaintiff,

v.Amy REMMELE, Individually and d/b/a Peak of Success, LLC, Defendants.

Supreme Court, Erie County, New York.

Oct. 15, 2012.

Duane D. Schoonmaker, Esq., for Plaintiff.

Lisa A. Coppola, Esq., for Defendants.

PATRICK H. NeMOYER, J.

Plaintiff commenced this action in March 2012 against defendants Amy Remmele (hereinafter Remmele or defendant, in the singular) and Peak of Success, LLC, the limited liability corporation of which Remmele is the sole member and by which she does business. The complaint states discrete causes of action for breach of contract, breach of fiduciary duty, negligence, and fraud or misrepresentation (or, more accurately, fraudulent omission of a material fact). The gravamen of each cause of action is that Remmele held herself out to the public and to plaintiff and plaintiff's then wife as a “marital counselor”; that plaintiff and his then wife engaged defendant to provide “marriage counseling” to the couple in an attempt to “ reconcile” their “differences”; that as part of such counseling, plaintiff disclosed to defendant intimate details with respect to his “marriage and his relationship”; that plaintiff paid defendant for such counseling; but that plaintiff eventually learned that defendant had a sexual relationship or extramarital affair with plaintiff's wife, leading to the commencement of divorce proceedings between plaintiff and his wife. Thus, the first cause of action alleges that defendant breached her contract with plaintiff with regard to the provision of marriage counseling services. The second cause of action alleges that defendant entered into a professional relationship with plaintiff of the highest trust, integrity, and discretion but that defendant breached that trust, and indeed exploited plaintiff's confidences with regard to his marriage. The third cause of action alleges that defendant held herself out as possessing the degree of learning and skill necessary to function as a marriage counselor but that defendant provided negligent and careless counseling. The fourth cause of action alleges that defendant engaged in misrepresentation and fraud by concealing from plaintiff the fact of the extramarital affair while counseling plaintiff and his wife. The complaint alleges that the aforementioned wrongs of defendant caused plaintiff to sustain compensatory damages of $300,000, including for emotional distress; the complaint further seeks unspecified punitive damages.

Now before the Court is a pre-answer motion by defendants to dismiss the complaint for failure to state a cause of action and based upon a defense or defenses founded upon documentary evidence ( seeCPLR 3211[a][1], [7] ). Defendants argue that the complaint is entirely subject to dismissal because all of its allegations amount to an improper attempt to circumvent Civil Rights Law § 80–a, commonly known as the Hart Balm statute, which proscribes causes of action for, inter alia, alienation of affections, criminal conversation, and seduction. Defendants further argue the existence of specific defects in or legal problems with plaintiff's various causes of action and with his demand for punitive damages. In attacking those claims, defendants submit the affidavitof Remmele, who describes her business as providing consulting services to individuals and businesses in order to help advance communications skills, increase productivity, and improve team building. Defendant thus avers that she is a “business coach” and is not now and never has been a “marriage counselor.” Defendant specifically denies contracting to provide marriage counseling services to plaintiff, but instead avers that she entered into but two separate contractual arrangements with his business, Alden Pools, Inc.¹ The first, according to defendant, was entered into around November 30, 2010, and called for defendants to run a daylong communication training retreat and conduct assessments and follow-up sessions for employees of plaintiff's business, including plaintiff and his then wife, in exchange for $2,100. The other, according to defendant, was entered into with the pool company around January 20, 2011, and called for defendants to arrange for one strategic planning meeting and some follow-up visits and to provide related materials to plaintiff's business in exchange for barter compensation consisting of the installation of a pool and trampoline at defendant's house. The documentary evidence relied upon by defendants includes an exchange of e-mails evidencing the first arrangement and a single-page formal agreement embodying the second.

The motion is opposed by plaintiff, who denies that “business coaching” was the only service rendered by defendants and who specifically avers that, beginning in the fall of 2009 and continuing periodically through the winter of 2010–2011, defendant provided “marital” or “couples counseling” to plaintiff and his then wife. Plaintiff submits some documentary evidence of his own, including an e-mail dated January 18, 2011 in which plaintiff seemed to complain to defendant about the inappropriate or ill-advised “blending” of the “personal and business” “dynamics” of defendant's involvement with plaintiff, his then wife, and the business. The second document, ostensibly prepared by defendant, summarizes a meeting of January 28, 2011. That document (including its second and third pages furnished by defendants in reply) tends to show that defendant's coaching or counseling of the couple at that meeting focused on the couples' marriage or personal relationship as well as on their business dealings with one another. The third document is an advertisement of a certain October 2011 seminar in terms tending to show that defendant involves herself in counseling “couples” in their “relation-SHIP” (be it “the Love Boat” or “the Titanic”) with one another.

Plaintiff further avers that his then wife advised him, by means of her lawyer's letter of March 17, 2011, that she wanted a divorce from him, a divorce eventually granted in July 2012. Plaintiff further avers that, along the line, he was told by his wife that she had been engaged in a sexual relationship with defendant “since at least January 28, 2011.”

In reply, defendant avers that the January 28, 2011 meeting among her, plaintiff, and his then wife “concerned plaintiff's business and in no way constituted marriage counseling.” Remmele further avers, “To the extent that plaintiff's relationship came up, it was in the context of communication issues between husband and wife business partners.” In support of that assertion, defendants puts in the second and third pages of the January 28, 2011 document.

Upon its consideration of the parties' respective submissions, the Court notes that on a motion to dismiss for failure to state a cause of action, the Court must accept the allegations of the complaint as true and accord the plaintiff the benefit of every possible favorable inference ( see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). The Court then must determine whether the facts as alleged by the plaintiff fit within any theory cognizable at law ( seeGoldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 570–571, 807 N.Y.S.2d 583, 841 N.E.2d 742 [2005];Leon, 84 N.Y.2d at 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511;Morone v. Morone, 50 N.Y.2d 481, 484, 429 N.Y.S.2d 592, 413 N.E.2d 1154 [1980] ). In opposing such a motion, the plaintiff may rest upon the allegations made in the complaint, in which case the issue for the Court is whether, within its four corners, the complaint sets forth the elements of a viable cause of action. Alternatively, the plaintiff may submit affidavits and other materials to remedy defects in the complaint and preserve unartfully pleaded but potentially meritorious claims ( see Arrington v. New York Times Co., 55 N.Y.2d 433, 442, 449 N.Y.S.2d 941, 434 N.E.2d 1319 [1982],rearg. denied and dismissed57 N.Y.2d 669, 674, 454 N.Y.S.2d 75, 1032, 439 N.E.2d 884, 1247 [1982],cert. denied459 U.S. 1146, 103 S.Ct. 787, 74 L.Ed.2d 994 [1983];Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976] ). In that case, the plaintiff's additional submissions are likewise to “be given their most favorable intendment” ( see Arrington, 55 N.Y.2d at 442, 449 N.Y.S.2d 941, 434 N.E.2d 1319;see also Pharmhealth Infusion, Inc. v. Rohm Servs. Corp., 249 A.D.2d 950, 671 N.Y.S.2d 364 [4th Dept.1998] ), and the Court is to focus on whether the pleader has a cause of action rather than on merely whether he has properly stated one ( seeLeon, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;Rovello, 40 N.Y.2d at 636, 389 N.Y.S.2d 314, 357 N.E.2d 970). In that analysis, “unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate” ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977] ).

On the other hand, the complaint should be dismissed where documentary evidence authoritatively contradicts some critical allegation of the complaint or resolves all factual issues in the case, thereby conclusively disposing of the claim ( see Goshen v. Mutual Life Ins. Co. of New York, 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002];Enzinna v. D'Youville College, 84 A.D.3d 1744, 1745, 922 N.Y.S.2d 729 [4th Dept.2011];Excel Graphics Techs., Inc. v. CFG/AGSCB 75 Ninth Ave., L.L.C., 1 A.D.3d 65, 69, 767 N.Y.S.2d 99 [1st Dept.2003],lv. dismissed2 N.Y.3d 794, 781 N.Y.S.2d 292, 814 N.E.2d 464 [2004];Gorilla Realty v. SLK Westbury, 288 A.D.2d 344, 734 N.Y.S.2d 458,lv. denied97 N.Y.2d 612, 742 N.Y.S.2d 604, 769 N.E.2d 351).

Applying the foregoing legal criteria, the Court concludes that neither the complaint as a whole, nor the individual causes of...