Oxman v. Amoroso
| Decision Date | 07 April 1997 |
| Citation | 659 N.Y.S.2d 963,172 Misc.2d 773 |
| Parties | Ellen OXMAN, Plaintiff, v. Eva AMOROSO, Doing Business as Au Pair Programme USA, Defendant. |
| Court | New York City Court |
Ellen Oxman, pro se.
Thomas Iannuccilli, Scarsdale, for Defendant.
Ellen and John Oxman ["the Oxmans"] decided to hire an au pair to care for their children, Genevieve, age 4, and William, age 3.
The Oxmans contacted Au Pair Programme USA ["AP USA"], a company based in Salt Lake City, Utah. AP USA is in the business of recruiting, screening, marketing and monitoring foreign nationals who provide child care services to families in the United States. AP USA sent the Oxmans a Host Family Application Form ["the Host Application"] , a letter from the defendant, Eva Amoroso ["Ms. Amoroso"] [Pl.Ex. 2] and a Host Family Agreement Form ["the Agreement"] [Pl.Ex. 1].
The Oxmans completed a Host Family Application Form ["the Host Application"] describing Mrs. Oxman as an "opera singer free lance " and her husband as a "banker ... (who) travels frequently ". They requested an au pair of German or English nationality, "someone who truly loves small children " and "with a good attitude ".
Ms. Amoroso, a resident of Yonkers, New York, was a "Community Counselor " employed by AP USA to interview the Oxmans, determine the "kind of Au Pair you are looking for ", give the newly arrived au pair an "orientation at your home", "keep in touch with you and your Au Pair once a month ", arrange events for local au pairs ["I also will be sending your Au Pair a newsletter every other month "] and otherwise be available to resolve any disputes between au pairs and host families.
Ms. Amoroso was paid on a commission basis by AP USA and was described in the Agreement as both an agent ["Community Counselor ... or other agents of the Program "] and not an agent ["no authority to act as an agent "] of AP USA. Ms. Amoroso also described herself as "an expert in " "cultural exchange " "and working with Au Pair Program U.S.A."
Ms. Amoroso solicited the Oxmans' business by describing what au pairs do 1 and AP USA's costs ["Total cost for the first year is $3,885.00 "], benefits ["Your Au Pair will have their own complete insurance coverage, flight to and from America, visa and application process, screening and interview process as well as counseling ... during the twelve months "] and rebates ["(AP USA) will also give you a $50.00 discount for every host family you refer to their agency "] [Pl.Ex. 2].
Ms. Amoroso promised that AP USA would verify the accuracy of a prospective au pair's references ["Another great fact is that references are checked, and you see all that included on the Au Pair's application "].
Mrs. Oxman signed the Host Agreement which contained the following clauses:
Ms. Amoroso interviewed the Oxmans and found their home to be "beautiful, spacious ", the Oxmans to be a suitable family and the situation [Def.Ex. B].
Upon receipt of the Host Application and Ms. Amoroso's interview results, AP USA sent the Oxmans information concerning a prospective au pair, Ms. Andrea Schrag ["Ms. Schrag"], residing in Germany. The information consisted of Ms. Schrag's application form to AP USA ["the Au Pair Application"] and several references [Pl.Ex. 2].
The questions and answers in the Au Pair Application were extensive. Of particular interest to the Oxmans were Ms. Schrag's representations of her work experience, e.g., "8/93-8/94 teacher for handicapped children " and "assistant in home for handicapped children ". The Oxmans' child, Genevieve, had a hearing disorder which required her to wear a hearing aid. The Oxmans considered her "handicapped" and in need of the special care which could be provided by an au pair experienced in caring for handicapped children.
Upon reading the Au Pair Application Mrs. Oxman telephoned Heather at AP
USA headquarters in Salt Lake City. Mrs. Oxman liked Ms. Schrag's credentials, particularly, her experience in caring for and teaching handicapped children. Heather confirmed that AP USA had verified the accuracy of the entire Au Pair Application including Ms. Schrag's work experience [Pl.Exs. 3, 4 & 5 () ].
The Oxmans relied upon the Au Pair Application, upon Ms. Amoroso's promise that AP USA would verify the accuracy of the Au Pair Application and upon AP USA's representation that it, in fact, had verified the Au Pair Application, entered into the Agreement and hired Ms. Schrag. The Oxmans paid AP USA $4,205.00 [Pl.Ex. 6] of which Ms. Amoroso received an undisclosed percentage.
Shortly after her arrival the Oxmans learned that Ms. Schrag had no work experience whatsoever with handicapped children. Apparently Ms. Schrag's " 'handicapped experience' was that she worked and lived with sexually abused juvenile delinquents in a reform school setting ... they threatened her, held her at knife point ... a far cry from hands-on experience with handicapped children." [Pl.Ex. 5]. In addition, Ms. Schrag "was overtly abusive (to the Oxmans' children)", "consistently impatient with both my children", "berated and belittled my daughter", "cursed in front of me and my children" and "(she wore a) T-shirt that said 'F--- volleyball' in small print" [Pl.Ex. 5].
The Oxmans fired Ms. Schrag, set forth their many complaints to AP USA [Pl.Ex. 5] and demanded a full refund of the $4,205.00 contract price. Relying upon its refund policy in the Agreement AP USA agreed to refund only $2,310.00. The Oxmans responded by commencing this lawsuit alleging fraud and seeking the unreimbursed balance of $1,885.00.
Ms. Amoroso appeared at trial represented by an attorney retained and paid by AP USA ["the AP Attorney"]. While denying that she was "doing business as Au Pair Program USA " Ms. Amoroso admitted working for and being paid by AP USA. Ms. Amoroso also admitted sending a letter [Pl.Ex. 2] to the Oxmans soliciting their business on behalf of herself and AP USA and denied none of the statements and representations therein.
The AP Attorney asserted that the Oxmans were bound by the refund policy in the Agreement which limited their damages, if any, to the refund of $2,310.00 already proffered by AP USA. In addition, the AP Attorney sought to dismiss the lawsuit on two grounds. First, the Agreement contained a forum selection clause ["Any and all lawsuits ... involving any issue or contractual requirements under this agreement shall ... be brought in the State of Utah "] which prohibits the Oxmans from suing Ms. Amoroso or AP USA in a New York State court. Second, the Agreement contained a choice of law clause ["The terms and conditions of this contract shall be construed under the laws of the State of Utah "] which also requires the dismissal of this lawsuit.
Based upon the foregoing the court finds that the plaintiff has asserted the following causes of action: (1) breach of contract, (2) negligent misrepresentation, (3) rescission based upon (a) want of consideration, (b) failure of consideration and (c) misrepresentations and (4) violation of New York State General Business Law 349 [].
The au pair concept is a useful form of cultural exchange which encourages young foreign nationals to come to the United States for one year, take educational courses, reside with a host family and perform light housekeeping and child care services. Organizations such as AP USA are governed, in part, by federal regulations ["... ] [Pl.Ex. 2]. The au pair concept is popular with host families because it
provides relatively inexpensive child care services delivered by educated, motivated and, generally, courteous foreign nationals.
Defendant's motions seeking to dismiss this lawsuit are denied for the following reasons. Forum selection clauses are among the most onerous and overreaching of all clauses that may appear in consumer contracts. The impact of these clauses is substantial and can effectively extinguish legitimate consumer claims, e.g., plaintiff's claim herein of $1,885.00 is, practically speaking, unenforceable except in this Small Claims Court since the costs of retaining an attorney in and traveling to Utah would far exceed recoverable damages.
The U.S. Supreme Court declared in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111 S.Ct. 1522, 1528, 113 L.Ed.2d 622 (1991) that "forum-selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness ". To be enforceable such...
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