Gre Apple Cleaners, LLC v EZ Pass Ne York 2013 NY Slip Op 32822(U) November 6, 2013 Supreme Court, Ne York County Docket Number: 651343/12 Judge: Cynthia S. Kern Cases posted ith a "30000" idtifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local governmt ebsites. These include the Ne York State Unified Court Systems E-Courts Service, and the Bronx County Clerks office. This opinion is uncorrected and not selected for official publication.
[* FLED: 1] NEW YORK COUNTY CLERK 11/06/2013 NDEX NO. 651343/2012 NYSCEF DOC. NO. 51 RECEVED NYSCEF: 11/06/2013 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART SS NDEX NO. 6:5/51/5/e.. - v - z PAS.5> /J 4"" Yo~,~.Ji 7.At:. MOTON DATE MOTON SEQ. NO. MOTON CAL. NO. The folloing papers, numbered 1 to ere read on this motion to/for -------- Notice of Motion/ Order to Sho Cause - Affidavits - Exhibits... PAPERS NUMBERED - 2 0 <{ a: ~ z - 3: ~o :::::>...J...,...J 0 0 LL - 0 :: l a: a: a: 0 (.) - W LL a: >-...J...J :::::> LL 1- (.) c.. a: <{ (.) 2 -- 0 l o 2 LL Ansering Affidavits - Replying Affidavits Cross-Motion: D Yes D No Exhibits Upon the foregoing papers, it is ordered that this motion..4. -... is decided in accordance ith th.. e annexed dec1s1on. Dated: _\--=--\--=---l,:...a-1-l..!:\ 3 ~ CYNTH!A S. KERNJ.s.c. Check one: D FNAL DSPOSTON )L\ NON-FNAL DSPOstrlON Check if appropriate: C DO NOT POST 0 REFERENCE
[* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ----------------------------------------------------------------------x GREEN APPLE CLEANERS, LLC, -against- Plaintiff, ndex:no. 651343112 DECSON/ORDER EZ PASS NEW YORK, EZ PASS NEW JERSEY, THE PORT AUTHORTY OF NEW YORK AND NEW JERSEY and AFFLATED COMPUTER SERVCES, NC., Defdants. ----------------------------------------------------------------------x HON. CYNTHA S. KERN, J.S.C. Recitation, as required by CPLR 2219(a), of the papers considered in the revie of this motion for: 1 Papers Numbered Notice of Motion and Affidavits Annexed...! 1 Affirmation in Opposition... 2 Replying Affidavits... : 3 Exhibits... 4 Plaintiff Gre Apple Cleaners, LLC ("Gre Apple") commced the instant action! against defdants EZ Pass Ne York ("EZ Pass NY"), EZ Pass Ne Jersey ("EZ Pass NJ"), the Port Authority of Ne York and Ne Jersey (the "Port Authority") and Affiliated Computer Services, nc. ("Affiliated") to recover damages for allegedly rongfully attempting to recover! unpaid tolls and administrative fees arising from plaintiffs use of electronic E-ZPass toll lanes on Port Authority bridges and tunnels. Affiliated no moves pursuant to CPLR 3211 to dismiss the complaint on the ground that it fails to state a cause of action. For the reasons set forth belo, Affiliateds motion is granted.
[* 3] The relevant facts are as follos. Plaintiff is a large cleaning serv~ce hich operates a fleet of pick-up-and-delivery trucks ho use the Port Authoritys E-Z Pas~ system. Affiliated, or.i more specifically, its subsidiary Local Solutions, nc., as and is an inde~dt contractor of the Port Authority hich, inter alia, processes E-Z Pass in Ne York State pursuant to a contract ith the Port Authority. i On or about April 24, 2012, plaintiff commced the instant action ith the filing of a Summons and Verified Complaint alleging that defdants are rongfully attempting to recover :J unpaid tolls and administrative fees arising from plaintiffs use of electropic E-Z Pass toll lanes on Port Authority bridges and tunnels. Specifically, plaintiff has asserted eight causes of action against defdants sounding in: ( 1) bad faith; (2) fraud; (3) misreprestation; ( 4) breach of good faith and fair dealing; (5) negligce and/or recklessness; (6) breach of contract; (7) unfair practices; and (8) defamation. Only the first sev causes of action are asserted against Affiliated directly. Affiliated no moves to dismiss the complaint in its tirety ori the ground that it fails! to state any cause of action. On a motion addressed to the sufficicy of the complaint, the facts pleaded are assumed to be true and accorded every favorable inferce. Morone v. Morone, 50 N.Y.2d 481 (1980). Hoever, "allegations consisting of bare legal conclusions, as ell as factual claims inhertly i incredible or flatly contradicted by documtary evidce are not titled to such consideration." Tai v. Malekan, 305 A.D.2d 281 ( st Dept 2003). Moreover, "[t]he statemts contained in a ; pleading must be sufficitly particular to give the court and parties notice of the transactions or., occurrces to be proved and must support the material elemts fo the cause of action." Matter of Red v. Nassau County Civ. Serv. Commn., 133 A.D.2d 694 (2nd Dept 1987). 2
[* 4] n the instant action, Affiliateds motion for an Order pursuant to CPLR 321 l(a)(7) :! dismissing plaintiffs complaint is granted. As an initial matter, the portion of Affiliateds motion seeking to dismiss plaintiffs breach of contract claim is granted. ~complaint adequately states a cause of action for breach of contract h it alleges: (1) the existce of a contract; (2) the plaintiffs performance under the contract; (3) the defdants breach of the contract; and (4) damages as a result of the breach. See JP Morgan Chase v. J H Electric :of NY, nc., 69 A.D.3d 802 (2d Dept 2010). Here, plaintiff alleges that "Defdants breached the E-Z Pass Terms of Service, h they misreprested a debt oed, and th misreprested to the Plaintiff on multiple occasions that the account as in good standing, inducing Plaintiff into taking no further action (such as for example, paying the debt off in a timely manner) and lulling Plaintiff into a false sse of security, resulting in significant damages and prejudice to Plaintiff." Additionally, plaintiff alleges that defdants "further violated the Term~ of Service by failing to provide monthly accountings of the outstanding debt." These allegations are insufficit to state a claim for breach of contract against Affiliated as it is undisputed that Affiliated is not a named party to the E-Z Pass Terms of Service. To the extt that plaintiff argues in its opposition papers that Affiliate is an agt of E-Z Pass, and as such is bound by the terms of the contract tered into it by its principal, such conttion is ithout merit as plaintiff fails to allege in its complaint any facts demonstrating that the Terms of Service applied to any agt of E-Z Pass and, in any evt, such conttion is refuted by the documtary evidce annexed to Affiliateds reply papers. The contract bete Affiliated and the Port Authority explicitly states that Affiliated "is and shall be, in all respects, an indepdt contractor in performing Services pursuant to this Agreemt." 3
[* 5] Additionally, Affiliateds motion seeking to dismiss the first and f?urth cause of action for bad faith and breach of good faith and fair dealing, respectively, is granted. As an initial matter, the court notes that hile plaintiff attempts to assert to distinct c.auses of action for bad faith and breach of the covant of good faith and fair dealing, these claims are in essce the same claim and not distinct under the la. ndeed, a party acts in bad faith by breaching the covant of good faith and fair dealing. Accordingly, the court ill discuss them under the same legal analysis. t is ell settled that "[ ]ithin every contract is an implied covant of good faith and fair dealing." Avtine nvestmt Managemt, nc. v. Canadian mperial Bank of Commerce, 265 A.D.2d 513, 514 (2d Dept 1999). "This covant is breached h a party to a contract acts in a manner that, although not expressly forbidd by any contractual provision, ould deprive the other party of the right to receive befits under their ~greemt." d. "For a complaint to state a cause of action alleging breach of an implied covant of good faith and fair dealing, the plaintiff must allege facts hich td to sho that the def~ant sought to prevt performance of the contract or to ithhold its befits from the plaintiff.: d. Here, as stated above, there is no contract bete plaintiff and Affiliated. Accordingly, there can be no breach of an implied covant of good faith and fair dealing as there is no implied duty abst a contract. Additionally, Affiliateds motion to dismiss plaintiffs second cause of action for fraud is granted. To plead a cause of action for fraud, a plaintiff must allege "a misreprestation or a material omission of fact hich as false and knon to be false by defdant, made for the ; purpose of inducing the other party to rely upon it, justifiable reliance of.the other party on the misreprestation or material omission, and injury." Lama Holding Co.. :v. Smith Barney, 88 N.Y.2d 413 (1996); see also Barclay v. Barclay Arms Associates, 74 N.Y.2d 644 (1989). 4
[* 6] Additionally, pursuant to CPLR 3016(b), "[]here a cause of action or defse is based upon misreprestation, fraud, mistake, illful default, breach of trust or undue influce, the circumstances constituting the rong shall be stated in detail." Here, plaintiff bases its claim for fraud on the folloing allegations: (1) that it "through its agts ould periodically contact Ne Jersey E-Z Pass;" (2) that "[]hever the agt could contact the E-Z Pass Customer Service Cter, they ould be told that there as no problem and that the account as in good standing;" i and (3) "defdants having misreprested a debt oed, and th fraudultly represted to the Plaintiff on multiple occasions that the account as in good standing, induced Plaintiff into taking no further action." These allegations are insufficit to state a claim for fraud as they are devoid of any particular facts that ould establish the elemts of fraud. : ndeed, plaintiffs allegations are nothing more than broad conclusory statemts. Additionally, Affiliateds motion to dismiss plaintiffs third and fifth causes of action for misreprestation and negligce and/or recklessness is granted. n order to adequately state a cause of action for negligt misreprestation, a plaintiff must plead facts hich ould "demonstrate (1) the existce of a special or privity-like relationship imposing a duty on the defdant to impart correct information to the plaintiff; (2) that the information as incorrect; and (3) reasonable reliance on the information." JA.O. Acquisition Corp. v. Stavitsky, 8 N.Y.3d 144 (2007). Here, plaintiff fails to state claim for negligt misreprestation as plaintiff does not allege any facts demonstrating a special or privity-like relationship b~te it and Affiliated. ndeed, as noted above by the court, plaintiffs claims cter around the E-Z Pass Terms of Service, hich Affiliated is not a party to. As plaintiff fails to allege any other facts demonstrating a relationship bete it and Affiliated, it cannot maintain a claim for negligt 5
[* 7] misreprestation. Finally, Affiliateds motion to dismiss plaintiffss sevth cause of action for unfair practices is granted. Pursuant to Section 349 of the Geral Business Lavy, "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in i [Ne York] are hereby declared unlaful." To state a claim for deceptive practices under Section 349, a plaintiff must sho: (1) that the challged act or practice ~as consumer-orited; (2) that the act or practice is misleading in a material respect; and (3) that the plaintiff as injured as a result of the deceptive act or practice. Strutman v. Chem. Bank, 95 N.Y.2d 24, 29 (2000). Here, plaintiffs complaint contains only the bare and conclusory allegation that: "Defdants acted in a manner that is both unfair and unjust in misleading and outright lying to Plaintiff on multiple occasions, as outlined above, resulting in significant damages and prejudice to Plaintiff." This is insufficit to state a claim for deceptive practices ~der Section 349 as plaintiff fails to allege or idtify any specific act or practice by Affiliated that as consumer ; orited and misleading in a material respect. Accordingly, Affiliateds motion to dismiss the complaint is granted. t is hereby ORDERED that plaintiffs complaint is dismissed as to Affiliated. This :constitutes the decision and order of the court. Dated: Enter:,t._~,,------- J.S.C., ER~ CfNT\ \t~ So K;.sC- 6