He v. Apple, Inc.

• Citation: 189 A.D.3d 1984,139 N.Y.S.3d 409
• Decision Date: 31 December 2020
• Docket Number: 527861
• Parties: Shirley HE, Appellant, v. APPLE, INC., Respondent, et al., Defendants.
• Court: New York Supreme Court Appellate Division

189 A.D.3d 1984
139 N.Y.S.3d 409

Shirley HE, Appellant,
v.
APPLE, INC., Respondent, et al., Defendants.

527861

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 17, 2020
Decided and Entered: December 31, 2020

Shirley He, Clifton Park, appellant pro se.

Schiff Hardin LLP, New York City (Katia Asche of counsel), for Apple, Inc., respondent.

Before: Egan Jr., J.P., Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

Plaintiff fell victim to a scam in which individuals posing as federal tax officials telephoned her, demanded payment for unpaid taxes and directed her to make that payment by providing redemption codes from iTunes gift cards. She proceeded to purchase several thousand dollars worth of iTunes gift cards and gave the codes to the scammers. After realizing that she had been duped, plaintiff reported the matter to local police and asked for a refund from defendant Apple, Inc. and the retailers from whom she had purchased the gift cards. The retailers and Apple denied her requests, citing the policy that lost or stolen gift cards are nonrefundable.

Plaintiff then commenced this action, asserting claims for fraud, unjust enrichment and negligence against Apple, Inc. and related individuals and entities (hereinafter collectively referred to as Apple) and claims for fraud and unjust enrichment against the retailers and related individuals and entities (hereinafter collectively referred as to the retailers). Apple moved to dismiss the amended complaint following the service of an answer on behalf of Apple, Inc., while the retailers filed similar motions prior to serving an answer. Plaintiff then cross-moved for leave to serve a second amended complaint alleging a claim that Apple had engaged in deceptive business practices. Supreme Court granted the motions by Apple and the retailers and denied plaintiff's cross motion. Plaintiff appeals and, as she has settled her claims against the retailers, we focus upon her arguments regarding the claims against Apple.

We affirm. In reviewing a motion to dismiss the complaint for failure to state a cause of action (see CPLR 3211[a][7] ), a court accepts the facts as alleged in the complaint as true, affords every possible inference to the plaintiff and determines only whether the allegations fall within a cognizable claim (see Cortlandt St. Recovery Corp. v. Bonderman, 31 N.Y.3d 30, 38, 73 N.Y.S.3d 95, 96 N.E.3d 191 [2018] ; Simkin v. Blank, 19 N.Y.3d 46, 52, 945 N.Y.S.2d 222, 968 N.E.2d 459 [2012] ; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). Affidavits or other proof submitted by the plaintiff may be used to remedy any defect in the complaint

139 N.Y.S.3d 412

(see Carlson v. American Intl. Group, Inc., 30 N.Y.3d 288, 298, 67 N.Y.S.3d 100, 89 N.E.3d 490 [2017] ; Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). Dismissal is nevertheless appropriate where a claim is premised upon "bare legal conclusions," where the alleged facts do not support "an element of the claim," or where "the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" ( Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141–142, 53 N.Y.S.3d 598, 75 N.E.3d 1159 [2017] [internal quotation marks and citations omitted]; see Mid–Hudson Val. Fed. Credit Union v. Quartararo & Lois, PLLC, 155 A.D.3d 1218, 1219, 64 N.Y.S.3d 389 [2017], affd 31 N.Y.3d 1090, 78 N.Y.S.3d 703, 103 N.E.3d 774 [2018] ). Applying that liberal standard here, we agree with Supreme Court that plaintiff failed to state any viable claim against Apple.

A fraud claim, which must be pleaded with particularity (see CPLR 3016[b] ; Carlson v. American Intl. Group, Inc., 30 N.Y.3d at 310, 67 N.Y.S.3d 100, 89 N.E.3d 490 ), requires allegations of "misrepresentation or concealment of a material fact, falsity, scienter by the wrongdoer, justifiable reliance on the deception and resulting injury" ( Lusins v. Cohen, 49 A.D.3d 1015, 1017, 853 N.Y.S.2d 685 [2008] [internal quotation marks and citation omitted]; accord Doller v. Prescott, 167 A.D.3d 1298, 1300, 91 N.Y.S.3d 533 [2018] ; see Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 31 N.Y.3d 569, 578–579, 81 N.Y.S.3d 816, 106 N.E.3d 1176 [2018] ). Plaintiff acknowledged that Apple was not involved with the scammers and pointed to no misrepresentations by it, instead asserting only that it had profited from the gift card sales and that its policy of not issuing refunds "motivated" the fraudulent acts of the scammers. Accordingly, absent allegations of any "misstatements or misrepresentations made specifically by [Apple's] representatives to [plaintiff], as required by CPLR 3016(b)," plaintiff failed to state a claim for fraud against Apple ( Moore v. Liberty Power Corp., LLC, 72 A.D.3d 660, 661, 897...