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Koch v Acker, Merrall & Condit Co.

Court of Appeals of New York

March 27, 2012, Decided

No. 117 SSM 13

Opinion

 [***452]   [*941]   [**675]  The judgment of Supreme Court appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and defendant's motion to dismiss   plaintiff's General Business Law §§ 349 and 350 causes of action denied. To successfully assert a claim under General Business Law §§ 349 (h) or 350, "a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice" (City of New York v Smokes-Spirits.Com, Inc., 12 NY3d 616, 621, 911 NE2d 834, 883 NYS2d 772 [2009]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 324, 774  [***453]   [**676]  NE2d 1190, 746 NYS2d 858, n 1 [2002]).  [****2] Here, plaintiff sufficiently pleaded such causes of action, and the disclaimers set forth in defendant's catalogs "do not … bar [plaintiff's] claims for deceptive trade practices at this stage of the proceedings, as they do not establish a defense as a matter of law" (Goshen, 98 NY2d at 326; see Gaidon v Guardian Life Ins. Co. of Am. 94 NY2d 330, 345, 725 NE2d 598, 704 NYS2d 177 [1999]).

To the extent that the Appellate Division order imposed a reliance requirement on General Business Law §§ 349 and 350 claims, it was error. Justifiable reliance by the plaintiff is not an element of the statutory claim (see Small v Lorillard Tobacco  [*942]  Co., 94 NY2d 43, 55, 720 NE2d 892, 698 NYS2d 615 [1999], citing Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 26, 647 NE2d 741, 623 NYS2d 529 [1995]).

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur in memorandum; Judge Smith taking no part.

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18 N.Y.3d 940 *; 967 N.E.2d 675 **; 944 N.Y.S.2d 452 ***; 2012 N.Y. LEXIS 543 ****; 2012 NY Slip Op 2254; 2012 WL 995287

 [1]  William I. Koch, Appellant, v Acker, Merrall & Condit Company, Respondent.

Subsequent History: Motion granted by, in part, Motion denied by, in part Koch v. Acker, Merrall & Condit Co., 2013 N.Y. Misc. LEXIS 3076 (N.Y. Sup. Ct., July 10, 2013)

Prior History: Appeal, by permission of the Court of Appeals, from a judgment of the Supreme Court, New York County (Martin Shulman, J.), entered August 26, 2011. The Supreme Court, upon a stipulation of discontinuance as to the breach of contract cause of action, dismissed that last remaining cause of action. The appeal brings up for review a prior nonfinal order of the Appellate Division of the Supreme Court in the First Judicial Department, entered May 27, 2010. The Appellate Division (1) reversed, on the law, so much of an order of that Supreme Court as had denied defendant's motion to dismiss plaintiff's causes of action asserted pursuant to General Business Law §§ 349 and 350, (2) granted the motion, and (3) dismissed those causes of action.

In an action arising out of the purchase of allegedly counterfeit bottles of wine, the Appellate Division noted that the "Conditions of Sale/Purchaser's Agreement" included in each of defendant's auction catalogs contained an "as is" provision alerting prospective purchasers that defendant "makes no express or implied representation, warranty, or guarantee regarding the origin, physical condition, quality, rarity, authenticity, value or estimated value of [the wine]," that any statements made by defendant were "opinion only, and shall not be relied upon by any bidder," and that "[p]rospective bidders must satisfy themselves by inspection or other means as to all considerations pertinent to any decision to place any bid." The Court concluded that a reasonable consumer, alerted by those disclaimers, would not have relied, and thus would not have been misled, by defendant's alleged misrepresentations concerning the vintage and provenance of the wine it sold, and that accordingly, plaintiff's claims under General Business Law §§ 349 and 350 lacked merit.

Koch v. Acker, Merrall & Condit Co., 73 A.D.3d 661, 901 N.Y.S.2d 271, 2010 N.Y. App. Div. LEXIS 4424 (N.Y. App. Div. 1st Dep't, 2010)

Disposition:  [****1] On review of submissions pursuant to section 500.11 of the Rules, judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and defendant's motion to dismiss plaintiff's causes of action under General Business Law §§ 349 and 350 denied, in a memorandum.

CORE TERMS

cause of action, deceptive