Goshen v. Mutual Life Insurance Company of New York
| Decision Date | 09 August 2001 |
| Citation | 730 N.Y.S.2d 46,286 A.D.2d 229 |
| Parties | PAUL A. GOSHEN, Appellant,<BR>v.<BR>MUTUAL LIFE INSURANCE COMPANY OF NEW YORK et al., Respondents.<BR>SARA M. DeFILIPPO et al., Respondents,<BR>v.<BR>MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellant, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
This class action was brought by a number of purchasers of defendants' "vanishing premium" life insurance policies, alleging that defendants violated General Business Law § 349 (h) by marketing these policies based upon knowingly unrealistic dividend projections. This case was the companion appeal to Gaidon v Guardian Life Ins. Co. (94 NY2d 330), and a detailed recitation of the facts is set forth in that decision. In Gaidon, the Court of Appeals determined that a question of fact was presented as to whether reasonable consumers would be misled in a material way by the Goshen defendants' actions, as contemplated by General Business Law § 349 (Gaidon, supra, at 345), and it remanded Goshen "for further proceedings consistent with [the] opinion" (id. at 350). However, the Court specifically stated that "[t]he propriety of the class certification [in Goshen] is not before us on this appeal" (id. at 341, n 8).
At issue in the first of these consolidated appeals is the narrow question of whether the claim brought by Paul Goshen, a Florida resident who bought his policy in Florida (from a Florida based insurance agent) was properly severed and dismissed after the case was remanded, on the ground that non-New York consumers who entered into transactions outside the State cannot bring actions pursuant to General Business Law § 349 (h). As to this issue, we affirm the motion court's determination that Mr. Goshen has failed to state a cause of action under General Business Law § 349, the New York Consumer Protection Act.
General Business Law § 349 (a) prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state," and under section 349 (h) a private right of action may be brought by "any person who has been injured by reason of any violation of this section" (emphases supplied). Applying this language, we recognize the settled rule of statutory interpretation, that unless expressly stated otherwise, "no legislation is presumed to be intended to operate outside the territorial jurisdiction of the state * * * enacting it" (73 Am Jur 2d, Statutes § 359 at 492; see also, McKinney's Cons Laws of NY, Book 1, Statutes § 149 at 305 []; see generally, Morgan v Bisorni, 100 AD2d 956, 956-957).
In conformity with these general principles, courts have held that to maintain a private right of action under General Business Law § 349 (h), a plaintiff must allege deceptive acts or practices which took place in New York State (Weaver v Chrysler Corp., 172 FRD 96, 100 [SD NY 1997]; see, e.g., Weinberg v Hertz Corp., 116 AD2d 1, affd 69 NY2d 979 []).
Thus, here, as in Cole v Equitable Life Assur. Socy. (271 AD2d 271), the protections of General Business Law § 349 (h) are unavailable to Mr. Goshen, a Florida resident who purchased a "vanishing premium" insurance policy from a Florida insurance agent in Tampa, Florida (see, id. at 272; cf., Meachum v Outdoor World Corp., 235 AD2d 462, 463 []; Morelli v Weider Nutrition Group, 275 AD2d 607, 608 [...
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