Goldman v. Simon Property Group, Inc.

• Citation: 2006 NY Slip Op 05319,31 A.D.3d 382,818 N.Y.S.2d 245
• Decision Date: 05 July 2006
• Docket Number: 2005-11119.
• Parties: ALIZA GOLDMAN, Appellant, v. SIMON PROPERTY GROUP, INC., Respondent.
• Court: New York Supreme Court Appellate Division

31 A.D.3d 382

818 N.Y.S.2d 245

2006 NY Slip Op 05319

ALIZA GOLDMAN, Appellant, v. SIMON PROPERTY GROUP, INC., Respondent.

2005-11119.

Appellate Division of the Supreme Court of the State of New York, Second Department.

July 5, 2006.

In a class action commenced by the plaintiff Aliza Goldman on behalf of herself and others similarly situated, inter alia, to recover damages for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and violations of General Business Law §§ 349 and 396-i, and for declaratory and injunctive relief, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated September 8, 2005, which granted that branch of the defendant's motion which was to dismiss the complaint on the ground that the action is preempted by the National Bank Act.

Ordered that the order is reversed, on the law, with costs that branch of the motion which was to dismiss the complaint on the ground that the action is preempted by the National Bank Act is denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith.

The plaintiff commenced this class action on or about February 7, 2005 challenging a $2.50 monthly dormancy fee imposed by the defendant in connection with its promotion and sale of Simon Gift Cards (hereinafter the card), and the allegedly improper manner in which such fees are disclosed. Thereafter, the Supreme Court granted that branch of the defendant's motion which was to dismiss the complaint on the ground that the plaintiff's claims were preempted by federal law. The Supreme Court determined that although the card was marketed by a nonbank entity, a national bank was the originating entity which issued the card and, as such, the national bank was the real party in interest. We reverse.

Contrary to the Supreme Court's determination, nothing in the record "conclusively establishes" (Leon v Martinez, 84 NY2d 83, 88 [1994]) that the national bank, as opposed to the defendant, is the real party in interest (see Flowers v EZPawn Okla., Inc., 307 F Supp 2d 1191, 1205 [ND Okla 2004]). The record indicates that the defendant and the national bank are separate entities (see SPGGC, Inc. v Blumenthal, 408 F Supp 2d 87, 93-94 [D Conn 2006]; Colorado ex rel. Salazar v Ace Cash Express, Inc., 188 F Supp 2d 1282, 1284-1285 [D Colo 2002]). More importantly, the record indicates that it...