| Moustakis v Christie's, Inc. |
| 2009 NY Slip Op 09543 [68 AD3d 637] |
| December 22, 2009 |
| Appellate Division, First Department |
| Ted Moustakis, Appellant, v Christie's, Inc., et al.,Respondents. |
—[*1] Levine Sullivan Koch & Schulz, L.L.P., New York (Nicole A. Auerbach of counsel), forrespondents.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered October 7, 2008,which granted defendants' motion to dismiss the complaint to the extent of dismissing all causesof action related to one of the items purchased by plaintiff, as well as the claims for fraud,negligent misrepresentation and violation of the General Business Law relating to all items, andthe demands for punitive damages, unanimously affirmed, without costs.
This action arises out of an auction of memorabilia from the Star Trek television series andmotion pictures. Contrary to plaintiff's contention that defendant Christie's had represented thecommander data uniform to be one of a kind, no such representation was ever made in theauction catalogue. Significantly, the conditions of sale, which plaintiff accepted in order to beallowed to participate in the bidding process, expressly declared that "all property is sold 'as is'without any representation or warranty of any kind by Christie's or the seller." UCC 2-316 (3) (a)recognizes that "unless the circumstances indicate otherwise, all implied warranties are excludedby expressions like 'as is' . . . which in common understanding calls the buyer'sattention to the exclusion of warranties and makes plain that there is no implied warranty."
Even assuming there was a breach of contract or warranty as to the other two itemspurchased by plaintiff at the auction, he was, under the conditions of sale, contractuallyprecluded from pursuing the massive recovery he now demands. The only remedy available tohim thereunder would be a refund of the sale price(s) upon return of the item(s), a limitationgenerally permissible in contracts for the sale of goods (see UCC 2-719 [1] [a]).
The allegations of fraud and negligent misrepresentation are virtually identical to those uponwhich the causes of action for breach of contract and breach of warranty rest, and are thusduplicative, inasmuch as there is no pleading of the breach of a duty separate and apart from thecontractual obligation owed to plaintiff. In that regard, it is axiomatic that "a simple breach ofcontract is not to be considered a tort unless a legal duty independent of the contract itself hasbeen violated" (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]).
Nor does plaintiff have a viable cause of action against these defendants under GeneralBusiness Law §§ 349 or 350. A party seeking those remedies must charge conductthat is consumer oriented, with an impact on the public at large (Canario v Gunn, 300AD2d 332[*2][2002]). Finally, the misconduct alleged here,which arises from a private contract, does not resemble the egregious wrongdoing that could beconsidered part of a pattern directed at the public generally, so as to warrant the imposition ofpunitive damages (see Garrity v Lyle Stuart, Inc., 40 NY2d 354, 358 [1976]).Concur—Sweeny, J.P., Catterson, Renwick, Freedman and Abdus-Salaam, JJ.