| Dank v Sears Holding Mgt. Corp. |
| 2009 NY Slip Op 01188 [59 AD3d 582] |
| February 17, 2009 |
| Appellate Division, Second Department |
| Warren S. Dank, Respondent, v Sears HoldingManagement Corporation et al., Appellants. |
—[*1] Stephen I. Feder, Syosset, N.Y. (Warren S. Dank, pro se, of counsel), forrespondent.
In a proposed class action to recover damages for violation of General Business Law§§ 349 and 350 and common-law fraud, the defendants appeal from an order of theSupreme Court, Nassau County (Bucaria, J.), entered August 28, 2007, which denied theirmotion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause ofaction.
Ordered that the order is affirmed, with costs.
The defendants, Sears Holding Management Corporation and Sears, Roebuck and Co.(hereinafter together Sears), are national retailers of consumer goods. The complaint alleges thatSears published a policy promising, in pertinent part, to match the "price on an identical brandeditem with the same features currently available for sale at another local retail store." Thecomplaint further alleges that the plaintiff requested at three different locations that Sears sellhim a flat-screen television at the same price at which it was being offered by another retailer.His request was denied at the first two Sears locations on the basis that each store manager hadthe discretion to decide what retailers are considered local and what prices to match. Eventually,he purchased the television at the third Sears at the price offered by a retailer located 12 milesfrom the store, but was denied the $400 lower price offered by a retailer located 8 miles from thestore.
"Affording the complaint a liberal construction, accepting as true all facts alleged therein,and according the plaintiff the benefit of every possible inference" (Love v Rebecca Dev., Inc., 56 AD3d733, 733 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman vOlinville Realty, LLC, 54 AD3d [*2]703 [2008]; Asgahar v Tringali Realty, Inc., 18AD3d 408 [2005]), the complaint states a cause of action under General Business Law§§ 349 and 350 (see Stutman v Chemical Bank, 95 NY2d 24, 29 [2000];Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25[1995]; Scott v Bell Atl. Corp., 282 AD2d 180, 183-184 [2001]; McGill v GeneralMotors Corp., 231 AD2d 449 [1996]; McDonald v North Shore Yacht Sales, 134Misc 2d 910 [1987]) and for common-law fraud (see Clearview Concrete Prods. Corp. v S.Charles Gherardi, Inc., 88 AD2d 461, 467 [1982]). Therefore, the Supreme Court properlydenied the defendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (7). Spolzino,J.P., Covello, Balkin and Belen, JJ., concur.