Weiner v. M. Fortunoff of Westbury, Inc.
| Decision Date | 28 January 1972 |
| Citation | 329 N.Y.S.2d 461,69 Misc.2d 171 |
| Parties | Alice M. WEINER, on behalf of herself and all other persons similarly situated, Plaintiff, v. M. FORTUNOFF OF WESTBURY, INC., doing business as Fortunoff Westbrook, et al., Defendant. |
| Court | New York Supreme Court |
Defendant moves to dismiss the complaint asserting that the plaintiff may not maintain a class action (CPLR 3211(a)(3)) and that the complaint fails to state a cause of action (CPLR 3211(a)(7)). The Court may treat the application as one for summary judgment and afford the parties an opportunity to submit further evidence to support their respective positions (Mareno v. Kibbe, 32 A.D.2d 825, 302 N.Y.S.2d 324; Lustig v. Congregation v. Kibbe, 32 A.D.2d 825, 302 N.Y.S.2d 480). We may also order an immediate trial of specified issues (CPLR 3211(c)).
On this application issues appear which the parties should be given an opportunity to present at a plenary trial on oral testimony, cross examination and argument based thereon and on the law.
Summary judgment is not a desirable remedy and it should not be used as a substitute for a trial. It is a drastic measure which should be withheld even where issues are not clearly presented but doubt is present as to whether or not triable issues exist (Millerton Agway Coop. v. Briarcliff Farms, Inc., 17 N.Y.2d 57, 268 N.Y.S.2d 18, 215 N.E.2d 341; Weiss v. Garfield, 21 A.D.2d 156, 249 N.Y.S.2d 458). These statements have been made so often that their repetition hardly seems necessary. Extended arguments presented by affidavit and memorandums of law cannot replace the benefits available from a trial (Poller v. Columbia Broadcasting System, Inc., 369 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458). The affidavits, the memorandums of law and the exhibits submitted suggest areas of inquiry to which the answers are not supplied.
Applying the rules enunciated by the Court in Cohn v. Lionel Corp., 21 N.Y.2d 559, 562, 289 N.Y.S. 404, 407, 236 N.E.2d 634, 636, we find that the plaintiff's complaint is legally sufficient.
Plaintiff, suing for herself and in a representative capacity for others similarly situated, pursuant to § 414 of the Personal Property Law seeks to recover finance charges imposed by the defendant allegedly in violation of § 413 of that statute. In a second cause of action she alleges that the practice of imposing a finance charge on prior finance charges results in compounding the same and in a further violation of the statute. In a third and final cause she alleges that the defendant's practices are usurious. She asks for a declaratory judgment that the defendant's practices violate § 413, for an accounting, money damages and related relief and thus effectively states a cause of action (Niagara Falls Power Co. v. White, 292 N.Y. 472, 55 N.E.2d 742). Involved here is the construction of § 413 of the Personal Property Law and the manner of its application by the defendant. That section recites (subd. 3) that a retail installment credit agreement made between a seller and a buyer may provide for a service charge 'on the outstanding indebtedness from month to month' of 1 1/2% Per month up to $500 and 1% Of the amount in excess of $500 of the 'outstanding indebtedness' but not less than 70 cents in any month.
Both sides refer to statements made by persons, newspapers and periodicals either attacking or supporting the validity of the statute. These are novel arguments where the construction of a legislative enactment is involved. Defendant urges that interpretations made by certain officials and administrative agencies and the failure of the legislature to make changes in the law should control this Court in its decision. Annexed to the defendant's memorandum in support of its application is a letter from the Banking Department of the State dated December 28, s970. The letter refers to prior correspondence concerning three methods used by creditors interpreting the phrase 'outstanding indebtedness from month to month' and the request of the defendant's attorney for an interpretation by the Banking Department regarding 'the opening balance method'. After this recital of the subject matter to which the reply is addressed, the Deputy Superintendent and Counsel to the Department replies:
'In view of the absence of specific statutory guidelines as to which method or methods of computation are proper, or a statutory definition of the words 'outstanding indebtedness, this Department has taken the position that any recognized method which a creditor chooses and applies consistently is proper, including the opening balance method.'
So far from approving the position taken by the defendant it would seem that the letter suggests the need for legislative clarification of the statute. The interpretation thus given by the Department does not aid the Court in the construction of the statute (cf. McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 129). In any event, a later opinion which would suggest an inconsistent construction could not be binding upon the Court (Essenfeld Bros. v. Hostetter, 20 A.D.2d 34, 37, 245 N.Y.S.2d 291, 293, revd. on other grounds, 14 N.Y.2d 47, 248 N.Y.S.2d 45, 197 N.E.2d 535).
The arguments made by the respective parties that some stores have adopted the method employed by the defendant and others have refused to, cancel each other out.
The retail installment credit agreement made between the parties (Exhibit A to the moving papers) provides that a cardholder (the retail customer) may pay the full amount due for purchases on...
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