Scarola v. Verizon Commc'ns, Inc.

• Decision Date: 26 May 2016
• Docket Number: Index No. 652705/2015
• Citation: 2016 NY Slip Op 30969 (U)
• Parties: RICHARD J.J. SCAROLA, Plaintiff, v. VERIZON COMMUNICATIONS, INC., Defendant.
• Court: New York Supreme Court

2016 NY Slip Op 30969(U)

RICHARD J.J. SCAROLA, Plaintiff, v. VERIZON COMMUNICATIONS, INC., Defendant.

Index No. 652705/2015

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 15

May 26, 2016

Decision and Order

Mot. Seq. 001

HON. EILEEN A. RAKOWER, J.S.C.

Plaintiff Richard J.J. Scarola ("Scarola" or "plaintiff") brings this action against defendant Verizon Communications, Inc. ("Verizon" or "defendant")¹ seeking a declaratory judgment and alleging breach of contract and violation of N.Y. General Business Law section 349 ("GBL § 349").

Defendant now moves for an order, pursuant to CPLR § 3211, dismissing plaintiff's complaint with prejudice. Defendant submits the affirmation of William D. Christ, Esq., dated September 14, 2015, annexing (a) the summons and complaint, dated August 3, 2015; (b) a complaint filed by Scarola, Malone, & Zubatov, LLP (the "Scarola Firm") in the Civil Court of the City of New York, County of New York, bearing Index No. 9119 NCV 2013 (the "2013 Action"); (c) a copy of the Settlement Agreement in the 2013 Action, dated July 25, 2013; (d) a complaint filed by the Scarola Firm against Verizon and McCarthy, Burgess & Wolff (the "2014 Action"); (e) the amended complaint in the 2014 Action; (f) the District Court's pre-trial conference order in the 2014 Action; (g) the further amended complaint in the 2014 Action; and (h) the District Court's Memorandum and Order in the 2014 Action.

In opposition, plaintiff submits the affidavit of Richard J.J. Scarola, annexing inter alia, a copy of plaintiff's e-mail correspondence with counsel for Verizon, dated October 13, 2015 and October 15, 2015; and a copy of a letter plaintiff sent to the District Court dated September 14, 2014.

In reply, defendant submits the reply affirmation of William D. Christ, Esq., annexing inter alia, Verizon's proposed stipulation, dated August 28, 2014, stating that Scarola and SMZ owe no amounts to Verizon with regard to Verizon's account number 6892005406; an October 15, 2015 e-mail from defendant's counsel to Scarola attaching a second proposed stipulation and order; and a copy of a check from Verizon to "Scarola Ellis" in the amount of $9,232.00, dated August 26, 2013.

The following facts are alleged in the complaint and assumed to be true for purposes of this motion. Plaintiff is a member of the Scarola Firm. The Scarola Firm and its predecessors maintained a business account (Account No. 6892005406) with Verizon for certain telecommunications services until late May 2012, when the Scarola Firm vacated its offices and moved to new offices. The Scarola Firm took all necessary steps to give effective notice to cancel all such services and no amounts were due from the Scarola Firm to Verizon. Nevertheless, Verizon began sending plaintiff monthly invoices in increasing amounts and other communications demanding payments. The Scarola Firm protested the continuation of billing on the account, made efforts to reach Verizon and obtain a response in writing or by telephone, and ultimately commenced a lawsuit against Verizon in April 2013 (the "2013 Action"). The 2013 Action settled by agreement in July 2013.

After settlement of the 2013 Action, Verizon, on its own and through the collection agency McCarthy Burgess & Wolff ("McCarthy"), began to "harass" plaintiff, personally and individually, at home and at work, making new demands for payment in continually increasing amounts. The demands were addressed to plaintiff, and did not identify the Scarola Firm or suggest that collection was being sought from the Scarola Firm or any party other than plaintiff individually. Plaintiff received multiple calls on the same day at his home, and repeated communications were directed to plaintiff's office.

Based on the foregoing allegations, plaintiff seeks a declaratory judgment that plaintiff owes no amounts to Verizon, damages arising from Verizon's breach of the 2013 settlement agreement, and damages due to Verizon's deceptive and misleading practices in violation of GBL § 349. Plaintiff also seeks to recover attorneys' fees, costs and disbursements incurred by plaintiff in connection with this action, including the related 2014 Action.

CPLR § 3211 provides, in relevant part: "(a) Motion to dismiss a cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: 1. a defense is founded on documentary evidence; or . . . 7. the pleading fails to state a cause of action[.]"

In determining whether dismissal is warranted for failure to state a cause of action, the court must "accept the facts alleged as true . . . and determine simply whether the facts alleged fit within any cognizable legal theory." People ex rel. Spitzer v. Sturm, Ruger & Co., Inc., 309 A.D.2d 91 (1st Dept. 2003) (internal citations omitted). The challenged pleading is "afforded a liberal construction" and the plaintiff is accorded "the benefit of every possible favorable inference." Leon v. Martinez, 84 N.Y.2d 83, 87, 638 N.E.2d 511, 513 (1994). However, allegations that consist of "bare legal conclusions and factual claims that are either inherently incredible or flatly contradicted by documentary evidence" are not entitled to such consideration. Summit Solomon & Feldesman v. Lacher, 212 A.D.2d 487, 487, 623 N.Y.S.2d 210, 210 (1st Dept. 1995).

I

Defendant argues that dismissal of plaintiff's first cause of action for declaratory judgment is warranted because there is no justiciable dispute, and plaintiff's request for declaratory relief is moot in light of the District Court's order in the 2014 Action. Defendant points out that plaintiff did not raise the issue of declaratory relief on appeal, and offers to enter a proposed stipulated order confirming that neither Scarola nor the Scarola Firm owe any amounts to Verizon with regard to account number 6892005406.

Plaintiff asserts that he is entitled to declaratory relief because, notwithstanding Verizon's consent to a declaratory judgment in the pre-trial conference order for the 2014 Action, the declaratory judgment was never entered, and Verizon refuses to agree to the steps necessary for the entry of declaratory relief.

Under CPLR 3001, this court "may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed." A declaratory judgment action thus "requires an actual controversy between genuine disputants with a stake in the outcome[.]" Long Island Lighting Co. v. Allianz Underwriters Ins. Co., 35 A.D.3d 253, 253 (1st Dept. 2006) (internal citation omitted); Winkler v. Spinnato, 134 A.D.2d 66, 81 (2d Dept. 1987) aff'd 72 N.Y.2d 402, 530 N.E.2d 835 (1988) ("Where there is no genuine dispute between the parties, the courts are precluded, as a matter of law, from issuing a declaratory judgment.").

In the present action, defendant does not contend that either Scarola or the Scarola Firm owe any amounts in connection with the closed Verizon account. Moreover, defendant agreed that no amounts were owed on the account in the Settlement Agreement resolving the 2013 Action, consented to the entry of declaratory relief in the 2014 Action, and has proposed to enter a stipulation order confirming that no amounts are owed. Because there is no genuine dispute with respect to the specific declaratory relief plaintiff seeks, this court is precluded from issuing a declaratory judgment. See Walker v. Pataki, 266 A.D.2d 40, 41, 698 N.Y.S.2d 624, 625 (1999) (declaratory relief unavailable where respondent officials did not dispute that foreign nationals were entitled to notification of foreign national's consulate upon arrest, and thus no justiciable controversy existed).

II

As for plaintiff's second cause of action, the elements of a breach of contract claim include the existence of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, and resulting damages. See, e.g., Morris v. 702 E. Fifth St. HDFC, 46 A.D.3d 478, 850 N.Y.S.2d 6 (1st Dept. 2007).

Defendant argues that plaintiff lacks standing to assert a claim under the Settlement Agreement because Scarola was not a party to the Settlement Agreement, and that plaintiff has failed to allege damages arising from the alleged breach of the Settlement Agreement.

Plaintiff contends that he has adequately plead damages and alleged his status as a signatory and party to the Settlement Agreement, or, at minimum, his status as a third-party beneficiary of the Settlement Agreement.

The Settlement Agreement is a letter dated July 25, 2013 addressed to "Richard J.J. Scarola, Esq., Scarola Malone & Zubatov LLP, 1700 Broadway - 41st Floor, New York, New York 10019" and regarding "Scarola Malone & Zubatov LLP v. Verizon Communications, Inc. NY Civil Index No. 9119 NCV 2013." The letter opens:

Dear Sir:

On behalf of Verizon New York Inc. ("Verizon") sued herein as "Verizon Communications, Inc." and its affiliates, we hereby amicably resolve the dispute regarding your internet service under account # 6892005406 at issue in the case captioned above. ("the Dispute"). This Settlement Agreement sets forth the terms and conditions of thesettlement and resolution of the Dispute. The signatories to this Agreement are referred to jointly as the "Parties."

In consideration of the mutual promises set forth in this Settlement Agreement, Verizon agrees to pay you a total settlement amount of $9,232.00 within thirty (30) days of your signature and return of this letter agreement. Verizon has also agreed to zero-out any remaining balance left on that account and close it out.

The Agreement further states: "This Agreement is binding on the Parties, their predecessors, successors, parents, subsidiaries, affiliates, assigns, transferees, agents, directors, officers, employees, attorneys and shareholders." While the Settlement Agreement also provides that "[e]ach of the...