General Business Law 349 provides that deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful and subparagraph (h) gives a private consumer a cause of action for damages and legal fees.
FRANCIOSA v. FLORIDA CONCEPTS POOLS INC., 2021 NY Slip Op 21291 – Westchester Supreme Court October 28, 2021:
“Plaintiff Arthur Franciosa commenced this action on August 18, 2020, naming as defendants Florida Concept Pools Inc. and Latham Pool Products Inc., claiming that he had entered into a purchase sale agreement with both defendants for a particular “Pacific Blue” color of fiberglass pool, but was delivered a pool of the wrong color. His causes of action claimed breach of contract, fraud, negligence in the sale, supply and delivery of the pool, and a violation of General Business Law § 349(a). An amended complaint filed on January 4, 2021 added as a defendant Kenneth Lauro Sr., the president of Florida Concepts Pools. A previous decision and order of this Court denied the motion of Florida Concepts Pools for dismissal based on asserted irregularities in the manner in which the complaint was amended.
In now moving pursuant to CPLR 3211, defendants Florida Concepts Pools and Kenneth Lauro Sr. contend that the causes of action for fraud and pursuant to General Business Law 349 must be dismissed for failure to comply with the strict pleading requirements of CPLR 3016. They cite the complaint’s allegation in support of plaintiff’s fraud claim, that defendant Florida Concept Pools Inc., and/or its president Kenneth Lauro Sr. made material misrepresentations with the intent to induce the reliance of the plaintiff that he could provide the fiberglass pool in Pacific blue that plaintiff had contracted for and paid for. While acknowledging plaintiff’s allegation that the moving defendants misrepresented that they could “provide the fiberglass pool in Pacific Blue that plaintiff had contracted and paid for,” defendants argue that in the absence of specific details as to the date, time, place or manner of such misrepresentation, the fraud claim may not be maintained.
The moving defendants also assert that the General Business Law claim is not sufficiently supported by the allegation that defendants represented that they were selling a Pacific Blue pool, then knowingly delivered a different color pool. The affirmation submitted by the moving defendants’ counsel in support, further remarks on “the patent falsity of the claim that the plaintiff had already paid for the pool at the time of the supposed misrepresentations,” and relies on the affidavit of defendant Lauro describing the series of events leading up to the dispute, to contend that the dispute was all plaintiff’s fault.
However, the cause of action alleging a violation of General Business Law § 349 must be dismissed. To state such a claim, the alleged misconduct must have a “broad impact on consumers at large,” and consequently, “the statute does not apply to private contract disputes unique to the parties” (see Wilner v Allstate Ins. Co., 71 AD3d 155, 163 [2d Dept 2010], citing Anesthesia Assoc. of Mount Kisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d 473, 480 [2d Dept 2009]). Regardless of whether any misrepresentations were affirmatively made, this private dispute does not fall within the coverage of General Business Law § 349.”