| Moore v Liberty Power Corp., LLC |
| 2010 NY Slip Op 02932 [72 AD3d 660] |
| April 6, 2010 |
| Appellate Division, Second Department |
| Teddy Moore, Appellant, v Liberty Power Corp., LLC,Respondent. |
—[*1] Greenberg Traurig, LLP, Albany, N.Y. (Cynthia E. Neidl of counsel), forrespondent.
In a putative class action for declaratory and injunctive relief, the plaintiff appeals from anorder of the Supreme Court, Queens County (Weinstein, J.), dated April 24, 2009, which grantedthe defendant's motion pursuant to CPLR 3211 (a) (1) and (7), and denied, as academic, his crossmotion, inter alia, for class certification.
Ordered that the order is affirmed, with costs, and the matter is remitted to the SupremeCourt, Queens County, for the entry of a judgment declaring that the defendant did not engage inany fraudulent or inappropriate conduct.
The plaintiff commenced this action alleging that the defendant agreed to supply electricityto his residence at a rate of .1896 cents per kWh, but that it was charging him 18.96 cents perkWh instead. The plaintiff alleges that this is a "bait and switch" scam which the defendant haspracticed on more than 200,000 people over the last seven years. The complaint sought ajudgment declaring that the defendant was operating a "criminal scam," and an order directing itto disgorge its overcharges. The defendant moved pursuant to CPLR 3211 (a) (1) and (7). Theplaintiff cross-moved, inter alia, for class certification. The Supreme Court granted the motionand denied, as academic, the cross motion. We 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 only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54AD3d 703, 703-704 [2008]; seeNonnon v City of New York, 9 NY3d 825, 827 [2007]; Leon v Martinez, 84NY2d 83, 87 [1994]; Smith v MeridianTech., Inc., 52 AD3d 685, 686 [2008]). "On a motion to dismiss based upondocumentary evidence [under CPLR 3211 (a) (1)], dismissal is only warranted if thedocumentary evidence submitted conclusively establishes a defense to the asserted claims as amatter of law" (Klein v Gutman, 12AD3d 417, 418 [2004]; see CPLR 3211 [a] [1]; Goshen v Mutual Life Ins. Co.of N.Y., 98 NY2d 314, 326 [2002]; Ballas v Virgin Media, Inc., 60 AD3d 712, 713 [2009]; McMorrow v Dime Sav. Bank ofWilliamsburgh, 48 AD3d 646, 647 [2008]).
The plaintiff asserts that the complaint alleges a cause of action to recover damages [*2]for common-law fraud. "To make out a prima facie case of fraud,the complaint must contain allegations of a representation of material fact, falsity, scienter,reliance and injury"(Small v Lorillard Tobacco Co., 94 NY2d 43, 57 [1999]; see Morales v AMS Mtge. Servs., Inc.,69 AD3d 691 [2010]; Oko vWalsh, 28 AD3d 529 [2006]; Glassman v Zoref, 291 AD2d 430, 431 [2002]).CPLR 3016 (b) further requires that the circumstances of the fraud must be "stated in detail,"including specific dates and items (seeMcGovern v Nassau County Dept. of Social Servs., 60 AD3d 1016 [2009]; see also Sargiss v Magarelli, 12 NY3d527 [2009]; Dumas v Fiorito,13 AD3d 332, 333 [2004]). The plaintiff failed to allege or provide details of anymisstatements or misrepresentations made specifically by the defendant's representatives to him,as required by CPLR 3016 (b) (see Small v Lorillard Tobacco Co., 94 NY2d at 57;Oko v Walsh, 28 AD3d at 529).
To the extent the plaintiff asserts that the complaint alleges consumer fraud in violation ofGeneral Business Law § 349, the plaintiff failed to mention General Business Law §349 in either the complaint or his opposition papers. Further, to state a claim under the statute, aplaintiff must allege that the defendant has engaged "in an act or practice that is deceptive ormisleading in a material way and that plaintiff has been injured by reason thereof" (OswegoLaborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25 [1995], citingVarela v Investors Ins. Holding Corp., 81 NY2d 958, 961 [1993]; see Small vLorillard Tobacco Co., 94 NY2d at 55). Here, the documentary evidence established that theparties entered into an agreement for the defendant to supply the plaintiff's residence withelectricity at a rate of "0.1896" per kWh, which can only reasonably be interpreted to mean$0.1896 per kWh. The failure of the agreement to use a currency symbol was not "deceptive ormisleading in a material way" (Andre Strishak & Assoc. v Hewlett Packard Co., 300AD2d 608, 609 [2002]; see Ballas vVirgin Media, Inc., 60 AD3d 712 [2009]), and the allegedly deceptive business practicewas not "likely to mislead a reasonable consumer acting reasonably under the circumstances"(Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d at 26).
In the absence of an actual controversy over the rate the defendant charged the plaintiff, theplaintiff is not entitled to declaratory relief (see CPLR 3001; Klostermann vCuomo, 61 NY2d 525, 538 [1984]).
The plaintiff's remaining contention is without merit.
Since this is, in part, a declaratory judgment action, the matter must be remitted to theSupreme Court, Queens County, for the entry of a judgment declaring that the defendant did notengage in any fraudulent or inappropriate conduct (see Lanza v Wagner, 11 NY2d 317,334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901[1962]). Rivera, J.P., Florio, Miller and Eng, JJ., concur.