Kohler v. Ford Motor Credit Co., Inc.
| Decision Date | 21 April 1983 |
| Citation | 93 A.D.2d 205,462 N.Y.S.2d 297 |
| Parties | Gerald F. KOHLER, Respondent, v. FORD MOTOR CREDIT CO., INC., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lynn, Lynn & Miller, Albany (Mark E. Watkins, Albany, of counsel), for appellant.
Salvatore J. Rico, Albany (David P. Marinucci, Albany, of counsel), for respondent.
Before MAHONEY, P.J., and SWEENEY, CASEY, WEISS and LEVINE, JJ.
OPINION FOR MODIFICATION
At issue on this appeal is whether article 29-H of the General Business Law should be construed as implicitly creating a private cause of action in favor of individuals affected by a breach of its provisions, and, if so, whether plaintiff's complaint states such a cause of action. We hold that, assuming article 29-H creates a private right of action, plaintiff's complaint fails to state such a cause of action and, therefore, we decline to pass on the first issue.
Plaintiff purchased an automobile pursuant to a retail installment contract which was assigned to defendant. When plaintiff fell behind in the payments required by the contract, defendant employed certain collection techniques culminating in repossession and sale of the automobile. Plaintiff then commenced the instant action, alleging that defendant had engaged in collection procedures that violated article 29-H of the General Business Law. 1 Defendant's answer includes a counterclaim for, inter alia, the balance due on the sales contract. Special Term denied defendant's motion to dismiss the complaint and its motion for summary judgment on the counterclaim. This appeal ensued.
Plaintiff's complaint alleges that defendant "engaged in debt collection procedures calculated to abuse and harass the plaintiff". Specifically, it is alleged that defendant's agents "came to plaintiff's place of employment, harassed him, caused a disturbance, and caused him extreme embarrassment, relative to his employer". These activities are alleged to have been in violation of article 29-H of the General Business Law, and it is further alleged "[t]hat by reason of the above, plaintiff has been damaged in the sum of $50,000".
Section 601 of the General Business Law sets forth nine prohibited practices for principal creditors. In our view, the allegations of plaintiff's complaint, accepted as true, are insufficient to establish that defendant committed any of the prohibited practices. The only provision that is even remotely relevant is that pertaining to a debtor's employment, contained in subdivision 4 of section 601, which prohibits the creditor from communicating or threatening to communicate "the nature of a consumer claim to the debtor's employer prior to obtaining final judgment against the debtor". The complaint, however, fails to allege that defendant's agents actually communicated with plaintiff's employer. Nor does the complaint allege that the activity complained of occurred before defendant obtained a final judgment. More importantly, other than the conclusory allegation that plaintiff has been damaged to the extent of $50,000, and the allegation that he was embarrassed, there are no factual allegations in the complaint as to the injuries or damages sustained by plaintiff as the result of the alleged violation of article 29-H of the General Business Law. Although the complaint will be liberally construed and be deemed to allege whatever can reasonably be implied from its statements, it still must allege the material elements of the cause of action (Lewis v. Village of Deposit, 40 A.D.2d 730, 336 N.Y.S.2d 672, affd. 33 N.Y.2d 532, 347 N.Y.S.2d 434, 301 N.E.2d 422), and plaintiff's complaint fails to do so. Supplementing the allegations of plaintiff's complaint with his answers to defendant's interrogatories and his affidavit, in order to determine whether plaintiff has a cause of action (see Wolcott v. Broughton, 57 A.D.2d 1022, 1023, 395 N.Y.S.2d 705), we reach the same conclusion since there are no factual allegations from which it can be inferred that plaintiff sustained injuries or damages of the type that the statute was intended to provide protection from. 2 Defendant's motion to dismiss the complaint, therefore, should have been granted. Since the allegations of plaintiff's complaint and supporting papers do not contain the material elements of a cause of action for intentional infliction of emotional distress (see Long v. Beneficial Fin. Co. of N.Y., 39 A.D.2d 11, 330 N.Y.S.2d 664), there is no basis for granting plaintiff's request for leave to amend his complaint to plead such a theory.
Turning now to defendant's motion for...
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