Bello v. Cablevision Systems Corp.

• Decision Date: 13 July 1992
• Citation: 587 N.Y.S.2d 1,185 A.D.2d 262
• Parties: , 1992-2 Trade Cases P 69,901 Carl BELLO, et al., Appellants, v. CABLEVISION SYSTEMS CORPORATION, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 1

587 N.Y.S.2d 1

185 A.D.2d 262, 1992-2 Trade Cases P 69,901

Carl BELLO, et al., Appellants, v. CABLEVISION SYSTEMS CORPORATION, Respondent.

Supreme Court, Appellate Division Second Department.

July 13, 1992.

Thomas J. Sinnickson, P.C., Center Moriches (Gerald S. Chapman, of counsel), for appellants.

D'Amato, Forchelli, Libert, Schwartz, Mineo & Joseph F. Carlino, Mineola (Donald J. Schwartz and Marjorie E. Bornes, of counsel), and Sullivan & Cromwell, New York City (Yvonne S. Quinn and David A. Heiner, Jr., of counsel) for respondent (one brief filed).

New York State Consumer Protection Bd., Albany (Patricia L.R. Rodriguez and Bob Cohen, of counsel), amicus curiae.

Before HARWOOD, J.P., and BALLETTA, LAWRENCE and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for fraud and for violation of the Donnelly Act (General Business Law § 340), the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Copertino, J.), dated June 15, 1990, which treated the defendant's motion to dismiss pursuant to CPLR 3211 as one for summary judgment, and having done so, granted that motion and dismissed the complaint in its entirety.

ORDERED that the appeal from so much of the order as pertains to the plaintiffs' eleventh cause of action is dismissed, as that portion of the order was superseded by an order of the same court, dated January 30, 1991, made upon renewal (see, Bello v. Cablevision Systems Corp., 185 A.D.2d 262, 587 N.Y.S.2d 209 [decided herewith]; and it is further ORDERED that the order is modified by deleting therefrom the provision granting the defendant's motion to dismiss pursuant to CPLR 3211(c), and substituting therefor a provision granting the motion pursuant to CPLR 3211(a)(7); as so modified, the order is affirmed insofar as reviewed; and it is further,

ORDERED that the defendant is awarded one bill of costs.

Although we believe that the parties charted a course for summary judgment on the issue of whether there exists a contractual relationship between them (see, Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 320, 515 N.Y.S.2d 1), we cannot conclude on this record, as did the Supreme Court, that it is "unequivocally clear" that this was so with respect to the remainder of the case (Four Seasons Hotels v. Vinnik, supra at 320, 515 N.Y.S.2d 1; John and Mary Markle Found. v. Manufacturers Hanover Trust Co., 173 A.D.2d 784, 570 N.Y.S.2d 647; cf. Monteferrante v. New York City Fire Dept., 63 A.D.2d 576, 404 N.Y.S.2d 629, aff'd for reasons stated, 47 N.Y.2d 737, 417 N.Y.S.2d 253, 390 N.E.2d 1177). However, this does not require reversal of the order appealed from, as this court may pass upon the sufficiency of the complaint, in any event (see, Barclay Arms v. Barclay Arms Assocs., 74 N.Y.2d 644, 542 N.Y.S.2d 512, 540 N.E.2d 707). In doing so we assess the complaint in light of the evidentiary material submitted in conjunction with the CPLR 3211 motion, as well as that appended to the complaint itself (see, Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; Fields v. Leeponis, 95 A.D.2d 822, 463 N.Y.S.2d 864; CPLR 3211[c]. Under these circumstances, "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v. Ginzburg, supra, 43 N.Y.2d at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17).

Further, the plaintiffs challenge the Supreme Court's specific findings with respect to the first, second, sixth, seventh, eighth, ninth, and eleventh causes of action. We conclude that their contentions are without merit, and dismiss the complaint in its entirety (see, Bello v. Cablevision Systems Corp., 185 A.D.2d 262, 587 N.Y.S.2d 209 [decided herewith], supra ).

The Supreme Court properly determined that there exists an implied-in-fact contract between the parties (see, e.g., Seaview Ass'n v. Williams, 69 N.Y.2d 987, 517 N.Y.S.2d 709, 510 N.E.2d 793; see also, Jemzura v. Jemzura, 36 N.Y.2d 496, 503-504, 369 N.Y.S.2d 400, 330 N.E.2d 414). The existence of a contract between the parties precludes recovery under the theory of quasi-contract (see, Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388-389, 521 N.Y.S.2d 653, 516 N.E.2d 190; see also, Bradkin v. Leverton, 26 N.Y.2d 192, 196, 309 N.Y.S.2d 192, 257 N.E.2d 643), and, therefore, the first cause of action is dismissed.

The plaintiffs' second cause of action to recover damages for fraudulent misrepresentation is premised on a claim that the defendant utilized false advertising. However, the plaintiffs, in their complaint and evidentiary material in support thereof, have failed to assert facts from which it could be concluded that they justifiably relied on the alleged misrepresentations (see, Levy v. Country Lake Homes, 133 A.D.2d 70, 518...