| Dank v Sears Holding Mgt. Corp. |
| 2012 NY Slip Op 01648 [93 AD3d 627] |
| March 6, 2012 |
| Appellate Division, Second Department |
| Warren S. Dank, Appellant, v Sears Holding ManagementCorporation et al., Respondents. |
—[*1] Greenberg Traurig, LLP, New York, N.Y. (Loring I. Fenton and William A. Wargo ofcounsel), for respondents.
In an action to recover damages for fraud and violation of General Business Law§§ 349 and 350, the plaintiff appeals from (1) a judgment of the Supreme Court,Nassau County (Bucaria, J.), entered December 2, 2010, and (2) an amended judgment of thesame court entered March 24, 2011, which, upon the granting of the defendants' motion pursuantto CPLR 4401 to dismiss the causes of action alleging fraud and a violation of General BusinessLaw § 350 for failure to establish a prima facie case, made at the close of the plaintiff'scase, and upon a jury verdict on the issue of liability finding that the defendants were not liableon the cause of action alleging a violation of General Business Law § 349, is in favor ofthe defendants and against him, dismissing the complaint.
Ordered that the appeal from the judgment is dismissed, as the judgment was superseded bythe amended judgment; and it is further,
Ordered that the amended judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The defendants, Sears Holding Management Corporation and Sears, Roebuck and Co.(hereinafter together Sears), are national retailers of consumer goods. In February 2007, Searspublished a policy promising, in pertinent part, to match the "price on an identical branded itemwith the same features currently available for sale at another local retail store." The plaintiffrequested at three different stores that Sears sell him a flat-screen television at the same price atwhich it was being offered by two other retailers. His request was denied at the first two Searsstores on the basis that each store manager had the discretion to decide which retailers areconsidered local and therefore which prices to match. Eventually, he purchased the television atthe third Sears store at the price offered by one retailer, but was denied a lower price offered byanother. The plaintiff commenced this action against Sears, alleging violations of GeneralBusiness Law §§ 349 and 350 and fraud. During a jury trial, at the close of theplaintiff's case, the Supreme Court granted the defendants' motion pursuant to CPLR 4401 todismiss the causes of action alleging fraud and a [*2]violation ofGeneral Business Law § 350 on the ground that the plaintiff had failed to establish theelement of reliance. With respect to the remaining cause of action alleging a violation of GeneralBusiness Law § 349, the jury found that the price match policy was not deceptive ormisleading.
The Supreme Court erred when it dismissed the plaintiff's causes of action alleging fraud anda violation of General Business Law § 350 on the ground that the plaintiff had failed toestablish the element of reliance. The plaintiff established that he relied on the representations ofa Sears employee when he traveled to the third Sears store in an attempt to obtain a price match.However, causes of action alleging violation of General Business Law § 350 and fraudrequire that the defendant acted deceptively or misleadingly (see Small v Lorillard TobaccoCo., 94 NY2d 43, 57 [1999]; Andre Strishak & Assoc. v Hewlett Packard Co., 300AD2d 608 [2002]), and the jury subsequently determined that Sears did not act in a deceptive ormisleading way. Thus, the plaintiff was not prejudiced by the Supreme Court's error, and reversalis not required.
The Supreme Court properly precluded evidence of the statements of various Searsemployees regarding the price match policy on the ground that they were hearsay, and not withinany exception. Under the "speaking authority" exception to the hearsay rule, an employee'scomments can be binding on an employer if the plaintiff submits evidence in admissible formestablishing that the employee's statement was made within the scope of the employee's authorityto speak for the employer (see Cohn v Mayfair Supermarkets, 305 AD2d 528, 529[2003]; Melendez v Melmarkets, Inc., 276 AD2d 535, 536 [2000]; Williams vWaldbaums Supermarkets, 236 AD2d 605, 606 [1997]). Here, however, the plaintiff did notprovide evidence that the Sears employees with whom he spoke when he visited the Sears storeshad the authority to speak on behalf of Sears (see Cohn v Mayfair Supermarkets, 305AD2d at 529; Risoli v Long Is. Light. Co., 195 AD2d 543, 544 [1993]).
Interrogatory responses may be used by any party for the purpose of impeaching thecredibility of a deponent as a witness (see CPLR 3117 [a] [1]; 3131). However, trialcourts retain their discretionary power to control the trial and to "avoid unnecessarily protractedor confusing presentation of evidence" (Feldsberg v Nitschke, 49 NY2d 636, 643[1980]). Here, it was within the Supreme Court's discretionary power to limit the plaintiff's use ofinterrogatories to impeach the credibility of a Sears witness.
The Supreme Court providently exercised its discretion in excluding from evidence laterrevisions of the price match policy on the ground that this evidence was irrelevant (seeSanchez v City of New York, 299 AD2d 475, 475-476 [2002]).
The plaintiff contends that the Supreme Court erred in precluding the introduction intoevidence of an audiotape of the plaintiff's conversations with Sears employees which, when aidedby a transcript of the recording, was sufficiently audible so that a jury would not be left tospeculate as to its contents (seegenerally People v Bailey, 12 AD3d 377, 377-378 [2004]). However, the error made bythe Supreme Court in excluding the audiotape was harmless (see CPLR 2002;Nestorowich v Ricotta, 97 NY2d 393, 400 [2002]), as the audiotape contained nothing ofprobative value. Rivera, J.P., Angiolillo, Leventhal and Cohen, JJ., concur.