Polzer v. TRW, Inc.

• Decision Date: 29 December 1998
• Citation: 682 N.Y.S.2d 194,256 A.D.2d 248
• Parties: 1998 N.Y. Slip Op. 11,452 Jeffrey M. POLZER, et al., Plaintiffs-Appellants, v. TRW, INC., et al., Defendants, and Bank of New York, etc., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 194

682 N.Y.S.2d 194

1998 N.Y. Slip Op. 11,452

Jeffrey M. POLZER, et al., Plaintiffs-Appellants v. TRW, INC., et al., Defendants and Bank of New York, etc., et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

Dec. 29, 1998.

James B. Fishman, for Plaintiffs-Appellants.

Dan J. Schulman, David P. Rubinstein, for Defendants-Respondents.

LERNER, P.J., WALLACH, TOM and ANDRIAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about May 19, 1997, which, inter alia, granted defendant Bank of New York (Delaware)("BNY") summary judgment dismissing plaintiffs' 40th through the 43rd causes of action and granted defendant Mobil Oil Credit Corporation ("Mobil") summary judgment dismissing plaintiffs' 50th through 53rd causes of action, unanimously affirmed, without costs.

The grant of summary judgment to defendants BNY and Mobil was not procedurally inappropriate since those defendants either moved for or requested such relief, and all parties, in submitting documents in support of their arguments, clearly charted a summary judgment course (see, De La Poer v. Salomon Bros., Inc., 193 A.D.2d 568, 598 N.Y.S.2d 217).

Substantively, the motion court properly determined that New York does not recognize a cause of action for "negligent enablement of impostor fraud", and that plaintiffs otherwise failed to state a cause of action in negligence, because BNY and Mobil had no special relationship either with the impostor who stole the plaintiffs' credit information and fraudulently obtained credit cards, or with plaintiffs, with whom they stood simply in a creditor/debtor relationship (see, McCarthy v. Sturm, Ruger & Co., Inc., 916 F.Supp. 366, 368, affd. 119 F.3d 148; Purdy v. Public Adm'r of County of Westchester, 72 N.Y.2d 1, 6-7, 530 N.Y.S.2d 513, 526 N.E.2d 4; Trustco Bank, N.A. v. Cannon Bldg. of Troy Assocs., 246 A.D.2d 797, 668 N.Y.S.2d 251; see also, Leigh Co. v. Bank of New York, 617 F.Supp. 147).

To the extent that plaintiffs pleaded causes of action based on intentional or negligent infliction of emotional distress or prima facie tort, the motion court properly granted summary judgment dismissing those claims as well, because there was no evidence of ill will, malice or extreme outrageous conduct, or of actual physical injury or apprehension of physical harm, and because there was no special duty owed plaintiffs by Mobil and BNY, and finally because plaintiffs failed to allege, much less offer proof of, special damages (see, Whalen v. County of Fulton, 941 F.Supp. 290, 299, affd. 126 F.3d 400; Natl. Westminster Bank, U.S.A. v. Ross, 130 B.R. 656, 686 n.6, affd. 962 F.2d 1).

The motion court, in addition, properly granted summary judgment dismissing plaintiffs' statutory claims brought under the Deceptive Acts & Practices Act (General Business Law § 349). Assuming arguendo that plaintiffs' complaints are consumer-oriented, and that the complained of action or inaction by BNY or Mobil was somehow improper, plaintiffs failed to make the requisite showing that the complained of conduct was deceptive or misleading to them (see, Varela v. Investors Ins. Holding Corp., 81 N.Y.2d 958, 598 N.Y.S.2d 761, 615 N.E.2d 218). An action does not compensate for "frustration" (see, Goldberg v. Manhattan Ford Lincoln-Mercury, Inc., 129 Misc.2d 123, 129, 492 N.Y.S.2d 318) and, as noted, plaintiffs have failed to demonstrate any damages or actual loss. In addition, because the alleged offensive acts or omissions ceased several years before the...