| J. A. Weitzman, Inc. v Lerner, Cumbo & Assoc., Inc. |
| 2007 NY Slip Op 10106 [46 AD3d 755] |
| December 18, 2007 |
| Appellate Division, Second Department |
| J. A. Weitzman, Inc., Doing Business as W & W ManufacturingCo., Appellant, v Lerner, Cumbo & Associates, Inc., Respondent, et al.,Defendants. |
—[*1] Robert F. D'Emilia, New York, N.Y., for respondent.
In a putative class action, inter alia, for injunctive relief and to recover damages for violationof the Telephone Consumer Protection Act (47 USC § 227), and General Business Law§ 349, the plaintiff appeals from an order of the Supreme Court, Nassau County (Davis,J.), dated July 7, 2006, which granted the motion of the defendant Lerner, Cumbo & Associates,Inc., for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
The plaintiff's complaint arises out of a single incident in which it received a three-pagefacsimile (hereinafter fax) sent after business hours from a staffing firm offering the plaintiff itsservices in providing employees. The plaintiff commenced a purported class action alleging, interalia, a violation of the Telephone Consumer Protection Act (47 USC § 227), seekingstatutory damages or actual damages and injunctive relief.
A class action to recover a penalty, or minimum measure of recovery pursuant to theTelephone Consumer Protection Act cannot be maintained in light of CPLR 901 (b) (see Rudgayzer & Gratt v Cape CanaveralTour & Travel, Inc., 22 AD3d 148 [2005]; Leyse v Flagship Capital Servs. Corp., 22 AD3d 426 [2005]; Weber v Rainbow Software, Inc., 21AD3d 411 [2005]; Giovanniello vHispanic Media Group USA, Inc., 21 AD3d 400 [2005]; Bonime v Bridge 21, Inc., 21 AD3d393 [2005]; Ganci v Cape [*2]Canaveral Tour & Travel, Inc., 21 AD3d 399 [2005]).
To the extent that the plaintiff waived statutory damages in favor of pursuing actual damagesand injunctive relief (see Super Glue Corp. v Avis Rent A Car Sys., 132 AD2d 604, 606[1987]; Alexander, Supplementary Practice Commentaries, McKinney's Cons Laws of NY, Book7B, CPLR C901:11), the plaintiff is unable to establish its entitlement to such relief. Althoughthe plaintiff asserted that it had lost orders for its products while the fax was being transmittedbecause its customers were unable to transmit their orders at that time, the plaintiff cannotidentify any particular customers who were thwarted by the fax from placing an order. Instead,the plaintiff attempts to rely upon a comparison of gross revenues to show a general loss of salesallegedly attributable to the fax. However, the plaintiff was unable to show such a loss with anyreasonable certainty and even if the plaintiff were to show a general loss of sales, there is noevidence that such a loss is attributable to the fax in question (cf. Kenford Co. v County ofErie, 67 NY2d 257, 261 [1986]). "In the absence of injury, the plaintiff cannot sue fordamages, nor may he seek equitable redress, 'because there is nothing to redress' " (Porr vNYNEX Corp., 230 AD2d 564, 576 [1997], quoting Marcus v AT & T Corp., 938 FSupp 1158, 1172 [1996], affd 138 F3d 46 [1998]; cf. Ashland Mgt. v Janien, 82NY2d 395, 403 [1993]; Lehigh Constr. Group v Almquist, 262 AD2d 943, 944 [1999];Hirsch Elec. Co. v Community Servs., 145 AD2d 603, 605 [1988]).
The plaintiff's remaining contentions are without merit. Schmidt, J.P., Rivera, Santucci andBalkin, JJ., concur.