Moore v. Liberty Power Corp., LLC

• Decision Date: 06 April 2010
• Citation: 72 A.D.3d 660,897 N.Y.S.2d 723
• Parties: Teddy MOORE, appellant, v. LIBERTY POWER CORP., LLC, respondent.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 723 72 A.D.3d 660 Teddy MOORE, appellant, v. LIBERTY POWER CORP., LLC, respondent. Supreme Court, Appellate Division, Second Department, New York. April 6, 2010.

Teddy Moore, Elmhurst, N.Y., appellant pro se.

Greenberg Traurig, LLP, Albany, N.Y. (Cynthia E. Neidl of counsel), for respondent.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, HOWARD MILLER, and RANDALL T. ENG, JJ.

In a putative class action for declaratory and injunctive relief, the plaintiff appeals from an order of the Supreme Court, Queens County (Weinstein, J.), dated April 24, 2009, which granted the defendant's motion pursuant to CPLR 3211(a)(1) and (7), and denied, as academic, his cross motion, inter alia, for class certification.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the defendant did not engage in any fraudulent or inappropriate conduct.

The plaintiff commenced this action alleging that the defendant agreed to supply electricity to his residence at a rate of .1896 cents per kWh, but that it was charging him 18.96 cents per kWh instead. The plaintiff alleges that this is a "bait andswitch" scam which the defendant has practiced on more than 200,000 people over the last seven years. The complaint sought a judgment declaring that the defendant was operating a "criminal scam," and an order directing it to disgorge its overcharges. The defendant moved pursuant to CPLR 3211(a)(1) and (7). The plaintiff cross-moved, inter alia, for class certification. The Supreme Court granted the motion and denied, as academic, the cross motion. We affirm.

"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703-704, 864 N.Y.S.2d 70; see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720; Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; Smith v. Meridian Tech., Inc., 52 A.D.3d 685, 686, 861 N.Y.S.2d 687). "On a motion to dismiss based upon documentary evidence [under CPLR 3211(a)(1) ], dismissal is only warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" ( Klein v. Gutman, 12 A.D.3d 417, 418, 784 N.Y.S.2d 581; see CPLR 3211[a][1]; Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; Ballas v. Virgin Media, Inc., 60 A.D.3d 712, 713, 875 N.Y.S.2d 523; McMorrow v. Dime Sav. Bank of Williamsburgh, 48 A.D.3d 646, 647, 852 N.Y.S.2d 345) The plaintiff asserts that the complaint alleges a cause of action to recover damages for common-law fraud. "To make out a prima facie case of fraud, the complaint must contain allegations of a representation of material fact, falsity, scienter, reliance and injury" ( Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 57, 698 N.Y.S.2d 615, 720 N.E.2d 892; see Morales v. AMS Mtge. Servs., Inc., 69 A.D.3d 691, 897 N.Y.S.2d 103; Oko v. Walsh, 28 A.D.3d 529, 814 N.Y.S.2d 655; Glassman v. Zoref, 291 A.D.2d 430, 431, 737 N.Y.S.2d 537). CPLR 3016(b) further requires that the circumstances of the fraud must be "stated in detail," including specific dates and items ( see McGovern v. Nassau County Dept. of Social Servs., 60 A.D.3d 1016, 876 N.Y.S.2d 141; see also Sargiss v. Magarelli, 12 N.Y.3d 527, 881 N.Y.S.2d 651, 909 N.E.2d 573; Dumas v. Fiorito, 13 A.D.3d 332, 333, 786 N.Y.S.2d 106). The plaintiff failed to allege or provide details of any misstatements or misrepresentations made specifically by the defendant's representatives to him, as required by CPLR 3016(b) ( see Small v. Lorillard Tobacco Co., 94 N.Y.2d at 57, 698 N.Y.S.2d 615, 720 N.E.2d 892; Oko v. Walsh, 28 A.D.3d at 529, 814 N.Y.S.2d 655).

To the extent the plaintiff asserts that the complaint alleges consumer fraud in violation of General Business Law § 349, theplaintiff failed to mention General Business Law § 349 in either the complaint or his opposition papers. Further, to state a claim under the statute, a plaintiff must allege that the defendant has engaged "in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof" ( Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741, citing Varela v. Investors Ins. Holding Corp., 81 N.Y.2d 958, 961, 598 N.Y.S.2d 761, 615 N.E.2d 218; see Small v. Lorillard Tobacco Co., 94 N.Y.2d at 55, 698 N.Y.S.2d 615, 720 N.E.2d 892). Here, the documentary evidence established that the parties entered into an agreement for the defendant to supply the plaintiff's residence with electricity at a rate of "0.1896" per kWh, which can only...