| Ovitz v Bloomberg L.P. |
| 2010 NY Slip Op 07484 [77 AD3d 515] |
| October 21, 2010 |
| Appellate Division, First Department |
| Bruce Ovitz, Respondent, v Bloomberg L.P., et al.,Appellants. |
—[*1] Sperling & Slater, P.C., Chicago, Ill. (Greg Shinall, of the Illinois bar, admitted pro hac vice, ofcounsel), for respondent.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered October 7, 2009, which,to the extent appealed from, denied so much of defendants' motion to dismiss the first, fifth and sixthcauses of action, unanimously reversed, on the law, without costs, the motion granted in its entirety, andthe complaint dismissed. The Clerk is directed to enter judgment accordingly.
In this putative class action, accepting as true the facts alleged in the complaint (see Leon vMartinez, 84 NY2d 83, 87-88 [1994]), we hold the automatic renewal provision of the agreementbetween plaintiff and defendants was both "inoperative" (General Obligations Law § 5-901) and"unenforceable" (§ 5-903), since defendants failed to provide the requisite notice to plaintiff thatthe two-year subscription term was to be automatically renewed (see Guerrero v West 23rd St. Realty, LLC, 45 AD3d 403 [2007], lvdenied 10 NY3d 707 [2008]; Protection Indus. Corp. v DDB Needham Worldwide, 306AD2d 175 [2003]). As such, the agreement was never effectively renewed for a definite term andcould have been canceled by plaintiff at any time (see Concourse Nursing Home v Axiom FundingGroup, 279 AD2d 271 [2001]).
However, dismissal of the claims based on General Obligations Law §§ 5-901 and5-903 is warranted since plaintiff makes no allegations that he paid for services he did not receive (see Ludl Elecs. Prods. v Wells Fargo Fin.Leasing, 6 AD3d 397, 398 [2004], lv denied 3 NY3d 603 [2004]; ConcourseNursing Home v Axiom Funding Group, 279 AD2d 271 [2001] [although subject equipmentleases were never renewed because lessor failed to comply with General Obligations Law §5-901, lessee, who continued using the equipment after the leases terminated, was not entitled torecover rent for post-termination period]). To the extent plaintiff seeks damages for defendants' allegedbreach of these statutes, a private right of action is not expressly created by the language of the statutesand a legislative intent to create such a right of action is not fairly implied in the statutory provisions andtheir legislative history (see e.g. Brian Hoxie's Painting Co. v Cato-Meridian Cent. SchoolDist., 76 NY2d 207, 211 [1990]).
The complaint also fails to state a cause of action under General Business Law § 349.Plaintiff, a resident of Illinois, was not deceived in New York State (see Goshen v Mutual Life[*2]Ins. Co. of N.Y., 98 NY2d 314, 325 [2002]). Nor didplaintiff allege actual injury resulting from the alleged deceptive practices, since defendants did notcommence enforcement proceedings against plaintiff and are not seeking to collect fees or paymentsfrom plaintiff in connection with the cancellation of his subscription (see Han v Hertz Corp., 12 AD3d 195 [2004]).
Furthermore, declaratory and injunctive relief is unwarranted in this case, since no justiciablecontroversy remains to support the claim for declaratory relief (see Spitzer v Schussel, 48 AD3d 233, 234 [2008]).Concur—Andrias, J.P., Saxe, McGuire, Moskowitz and Freedman, JJ. [Prior CaseHistory: 2009 NY Slip Op 32397(U).]