| Ballas v Virgin Media, Inc. |
| 2009 NY Slip Op 01761 [60 AD3d 712] |
| March 10, 2009 |
| Appellate Division, Second Department |
| Nicole Ballas, Appellant, v Virgin Media, Inc., et al.,Respondents. |
—[*1] Skadden, Arps, Slate, Meagher & Flom LLP, New York, N.Y. (Anthony J. Dreyer, KennethA. Plevan, and Allison K. Levine of counsel), for respondents.
In a putative class action, inter alia, for injunctive and declaratory relief and to recoverdamages for breach of contract and violation of General Business Law §§ 349 and350, the plaintiff appeals from an order of the Supreme Court, Nassau County (Austin, J.),entered December 11, 2007, which granted the defendants' motion to dismiss the complaintpursuant to CPLR 3211 (a) (1) and (7).
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action alleging, inter alia, breach of contract and violation ofGeneral Business Law §§ 349 and 350 with respect to "pay-as-you-go" cellularphone services. Specifically, the plaintiff alleged, among other things, that the defendants failedto disclose on the packaging of its cellular phone, or did not otherwise properly disclose, eitherthe requirement that subscribers to its phone services periodically "top up" their accounts bypaying additional sums of money to the defendants to increase the available balances on thoseaccounts, or the consequences of failing to "top up." The defendants moved to dismiss thecomplaint pursuant to CPLR 3211 (a) (1) and (7). The Supreme Court granted the motion, andwe affirm.
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the pleading a liberal construction, accept all facts asalleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, anddetermine [*2]only whether the facts as alleged fit within anycognizable legal theory" (Breytman vOlinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84NY2d 83, 87 [1994]; Smith v MeridianTech., Inc., 52 AD3d 685, 686 [2008]). "On a motion to dismiss based upondocumentary evidence, dismissal is only warranted if the documentary evidence submittedconclusively establishes a defense to the asserted claims as a matter of law" (Klein v Gutman, 12 AD3d 417,418 [2004]; see CPLR 3211 [a] [1]).
Inasmuch as no contract was formed until subscribers chose a particular service plan andactivated their phones, the defendants' failure to disclose the "topping up" requirements on theexterior packaging of the phone itself does not support a cause of action alleging breach ofcontract (cf. Brower v Gateway 2000, 246 AD2d 246, 251 [1998]). Furthermore, thedocumentary evidence submitted by the defendants conclusively established that the "toppingup" requirements were disclosed before the contract was entered into and subscribers had theoption of selecting a plan that did not impose a "top up" requirement. Consequently, the SupremeCourt properly dismissed the cause of action sounding in breach of contract.
The court also properly dismissed the plaintiff's claims alleging violations of GeneralBusiness Law §§ 349 and 350. The documentary evidence established that thestatements which the plaintiff claims to have constituted "false advertising" were not "deceptiveor misleading in a material way" (Andre Strishak & Assoc. v Hewlett Packard Co., 300AD2d 608, 609 [2002]), and that the allegedly deceptive business practices were not "likely tomislead a reasonable consumer acting reasonably under the circumstances" (OswegoLaborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 26 [1995]). In anyevent, the plaintiff failed to allege that she suffered injury as a result of the allegedly deceptivebusiness practices or false advertising (see Lonner v Simon Prop. Group, Inc., 57 AD3d 100 [2008]; Vigiletti v Sears, Roebuck & Co., 42AD3d 497 [2007]; Smith v Chase Manhattan Bank, USA, 293 AD2d 598, 599[2002]; see also Donahue v Ferolito,Vultaggio & Sons, 13 AD3d 77, 78 [2004]; DeRiso v Synergy USA, 6 AD3d 152, 152-153 [2004]).
The plaintiff's remaining contentions are without merit. Fisher, J.P., Covello, Angiolillo andDickerson, JJ., concur. [See 18 Misc 3d 1106(A), 2007 NY Slip Op 52441(U).]