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ANNED ON 112712011

SUPREME COURT OF THE SPATE OF MEW YORK - NEW YBRK COUNTY

PART ,?6

MOTION DATE
-v- n
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MOTION SEQ. NO.

MOTION CAL. NO.

The following papera, numbered 1 to 11' were read on this motion *for &
&u(f h m ~ ~

Notice of Motion/ Order to S h o w Cause .- Affidavits - Exhibits ..,

Answering Affldavits - Exhiblts
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Replying Affidavits
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Cross-Motion: n Yes E4 No
Upon the foregoing papers, it is ordered that this motlon 15 &l;/&a ///I (4 c [ r & - -

Check one: 0 FINAL DISPOSITION NON-FINAL DISPOSITION

Check if appropriate: 0 DONOTPOST 0 REFERENCE

 Plaintiff,
Index No. 1 16050/09
-against-
Motion Seq. Nos. 001 & 002
KURT B. F R E D alWa C‘l JKl’IR. FRlED, DANlEL
L. FRTED, HAROLD 6‘3ILL,ET,LAWREVCE 14.
GTl.I,ET, EI&H PHO‘TOGRAPfHERS dk/a Elr‘kI 1
PHOTOGMPHERS & VIUEO PKODUC’T’IONS,
and H.&H. PHOTOGRAPHERS OF N E W YORK, TNC., .

DORIS LING-COHAN, J.:

This is a case in which it appears that the “misty watercolor rneinories’’ and the Lcscnttered

pictures o f h e smiles . . . left behind”’ a1 lhe wedding were more iniprtant than the real thing.

Approximately seven years ago, plaintiff’married h i s nowdivorced wife, with photographs taken

by defendants. Although the marriage did not endure, plaintift’s fuiy over the quality of the

photographs and video continued on.

Backproud

On November 29, 2007, plaintiff‘3‘odd licmis entered inlo a contracl with defendant H&H

Photographers dlda H&W Pliotograplicrs & Video Productions andor H.&M. Photographers of

New Y ork, Inc. (collectively, “H&H’’) to photograph and video his wedding ceremony and

reception, which took place on December 28, 2003 ‘T’hecontract pricc was $4,100, of which

’ Referencing the song ’The Way We Were, written hy Alnn Bergman and Marilyn
Rergmnn, performed by Barbra Streisand.

Motion sequerice numbers 00 1 and 002 are consolidatod for disposition herein.
$3,500 was paid by plaintiff at the lime he: entered into the contract, leaving a balance of $600.

In his complaintt,plaintiff all,eges that employees of H&H represented that HrPtI-I’s

photographers were personally F-itniIiarwith the lvcatioii of the wedding and would provide

professional photography aid video services Cor the entjre: wedding event. After initiating his

divorce action3, plaintiff sues for his “actixul damages in excess of $48,000”4, with interest,

punitive damages not lcss than “threc times plaintiff7s actual damages”, and for attorneys’ fees.

Am. Coinpl at 1 I . Plaintiff alleges 1.ha.1the services hc received were unacceptable, as to: (.1)

quality oftlie proofs of the photographs; (2) length, alleging that the entire wedding was not

kideotaped ;ts promised; and (3) the photogmplrer’s uizfnrriiliarity with the wedding site. Plai.ntiff

hrther alleges that after hc expressed his dissatisfacljon, H&H represented they would

compensate hiin for their misrepresentations and their unacceptable and unprofessional work,

product, but failed to do so. Further, plaintiff alleges that after several years, H&H improperly

threatened collection efforts and harassed plaintiff.

Plaintiff commenced this action, alleging the following cmscs of action against all
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defendarits: (1) breach of contract; (2) negligcnt misrepresentation; (3) violation ofthe New Y orli

General Business Law pertaining to ,fala: advertising,, misleading trade practices and prohibited

collection practices; (4,) intentional misrepreseiitatic,n/ljrL?ud;( 5 ) punitive damages; (6) uttomeys’

fees; (7) negligent infliction of emotional distress; and (8) intentional infliction of emotional

distress.

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The Court mtes that plaintit’fis now divorced from his wife since April 28, 2010, yet, :,..
nonetheless continues this lawsuit for the alleged failure 1.0 provide adequate photography
services at the now estranged couple’s vvedding.
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$48,000 appears to be the cost oEtlie wedding. ,!See Am Compl 26.

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A. Motion to Uistnir~&

All defendants now move (motion scquerice 001) to dismiss the action, based on statute of

limitations, for failure to state a causc of action, a i d fiii1iu.eto plead with p~~rticularity,
pursuant to

CPLR 321 1(a>(5)and (7) and 3016(b).

Preliminarily, the Court notes thal wlwthcr. plaintiff will ultimately prevail is not the issue

before this Court at this time. “In delermiaing . . . a motion [to dismiss], it is not the function of

the CULLIT to evaluate the merits of the case.” Khan v Nmwveek, lac , 160 h D 2 d 425, 426 (1 st

Uep’t 1990); scc also 219 Broodway (:‘nrp ’17 Alexmder ’s, I m . ,46 NY2d 506, SO9 (‘1979). “On a
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motion to dismiss for. insufficiency, it is not the f h m i o n of the court to evaluate the merits of a

cmc.’’ Carhilimo ‘v R m s , 108 A.D2d 7’76, ‘777 (2d Dep’t 1985). Instead, on a motion to dismiss

pursuant to CPLK 32 1 1, h e pleading is given cl liberal constrcrcti.oa and the facts alleged therein

are accepted as true. Leon 1, hiwtinez, 84 NY2d 83, 87 (1 994). The motion to dismiss will only

inference, th.c facts do not fit

be graiited if, upon giving the non-moving party every -k~orablc
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within any cognizable legal theoiy. I d at 87-88”

3.. Breach OS C:ontract

Defendants move to dismiss the :first cause o f action for breach of contract for failure to

state a claim. At this juncture, the cause o f action is not dismissed as it has been sufficiently

pleaded. The following elements must tie established on a breach of contract claim: (1) a valid

and enforceable contract; (2) the plaintiffs perfomlance ofthe contract; (3) breach by the

defendant; and (4)damages. See Noise in A l l k Pruds., bic. v London Records, 10 RJXd 303, 307

[ 1st Dep’t 2004); Furia v Fzrria, 1 I6 AD2d 694, 695 (2d Dep’t 1886). r)efe‘enduntscontend that

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plaintiff cannot adequately support his slo.led iiirwun~of damages and, thus, has failed lo properly

state a breach of contract claim. I-Iowrver, viewing the alleged facts in the light most favorable to

plairitiff, which the Court must do at t h i s juncture, plaiiitifi' has adequately alleged the eleinexrt of

damages, in addition to the other elements. PlainIiFf alleges that he entered into a contract for

photography services in the amount of $4,100 and paid $3,500 at the time he entered into the

contract, and alleges he was damaged by having hiled lo receive adequate services. Although

plaintiff seeks damages beyond the contract price5, at a minimum, plaintiff has adequately alleged

damages in the amount o€the contract. 'Ilzus, the breach of contract claim has been sufficiently

pleaded.

2. Negligent Misrepresentation ;/

Defendants move to dismiss the second cause of action asserted in the complaint based on

statute of limitations groiuids and f i r failure to plead with adequate particularity. The second

C B U S ~of action for negligent misrepresentution has a klree-year statute of limitations. See C'PLR

214; see ulso (,'(>Ion Banco Pcppuhr Nurih Am., 59 AD3d 300, 301 (1st Dep't 2009). Plaintiff
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entered into the contract with defendanls on November 24,2003 and the wedding photography

services at issue in this lawsuit occurred on 13eceniber 28, 2003. Since this action was

commenced on Nuveinbet. 1 3,2009, more tliari thee years later, plaintiff has failed lo bring the

claim for negligent misrepresentation within the time period allowed.

While plajiitiH argiies that the 1013 causes ol' action arc continuing wrongs and, thus, the

statute of limitations has not run on those claims, such axgument is unpersuasive. Plaintiff

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It appears that plainti IT is also suing (in the cntirl: cost US: the wedding, which he is
unlikely to be nwarded,

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conlends that defendants’ harassment a i d threats to collect the purported d.ebt years after the

wedding occurred are sufficient to find dtlt‘endants’ tortio‘us actions to be recurring, which

prevented the statute of liniilations from mnning. I-lowever, the second cause of action lor

negligent misrepresentation is really based on statements allegedly made by defendants in either

entering th.e contract or sliortly thereafter. In any event, more than. three years have passed and the

claim is baned. Thus., as to the second cause o f action for negligent misrepresentation, it is

dismissed as the statute of lintitations h a l run.

3. GBI, 0 349 .- Deceptivc Ac,~sand Practices

Defendants move to dismiss the third cause o f action for violation of the New York

General Business Law, based OD plaintiffs alleged failure 1.0 state a cause of a c h n and failure to
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state the claim with particularity. Plaintiff brings this suit under GBL 13 349, which governs
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deceptive acts and practices. The elements of a cause o-Emtion under GBL. 349 are: (1) the

challenged act or practice was consumer-orienteilI (2) it was misleading in a material way; and (3)

plaintiff suffered injury as a result of the deceptive act. Oswego Laborers ’ Local 2 / 4 Pension

Fund 17 Murine Midlund Bunk, N . A , 85 NY2d 20, 24-25 (.199S).

With respect tu the first element, a party:

claiming the benefit of the section must, at a ~heslzold,charge conduct

that is cousumer oricnted. The conduct need not be repetitive or
recurring but defendant’s ac1.s or praclices must have a broad impact
011 consumers at large; Lplrivate contract disptites unique to the parties
would riot fall within ihc ambit of the statute.

New Yurlc IJoiv.11 C’ontinmfalIiis. C’u.,87 NY2d 308, 320 (1905) (internal yuoiations ,and ~

Luborws ’ Local 21 4 Pension F m d ,

citations omitted). As the Court of Appeals noted in Osu~egc~

acts wlzich are the sub-jectof be statute rnusl be ‘~COnsUrncr-cirieiitedin the sense that they
potentially affect similarly situated consumers.’’ 85 NY2d at 27. ‘The test is “whether a

reasondble consumer in plaintiffs’ circumstances nlight have been misled by the . . . conduct.” Id.

Viewing tlie allegations in the light mosi favorable to the noti-moving party, plaintiff has

failed to adequately state a claim for violation of‘GR1, 8 349 and the cause of action is dismissed.

Plainti5 has alleged that “rd]ef‘endants engaged in praliibi ted practices in asserting a purported

right to collect, and threatening to collect, arnouiils which defendants knew were not justly due UI

legally chargeable against plaintiff.” Am Compl 7 5 5 . Ilowever, it is uiidisputed that there was a

contract between plaintiff nnd H&H. ‘Oms, if the rourt accepts plainiii’f’s view, in breach

of contract case, a GBI>cj 349 clam could be asserted whzn m e tries to collect on the contract,

which could not have been the inteat.

Further, as to plaintiffs allegations that “Deknddnts’ misleading, deceptive and prohibited

It
practices in marketing its services to the general public hzlvc a broad iinpact on CorisUmers at

large” and have caiised plaintiffto suffer daniages (id 77 54..58), such allegations are general

legal conclusions and speculation, rather thaxi concrete f x t s from which this Court could infer a

marketing scheme with broad impact (71 an injury to cunsimwrs at large. Plaintiff has failed to

suflkiently dernorlstrale that de kndmt’s alleged deceptivc acts or practices are consumer-oriented

within the meaning of the st:ltutc; rather, this IS a priv~ittecontract dispute unique to the parties.

See New York Urriv.,87 NY2d at 320.

4.Intentional Mis~epreseiitntioi~/Fraud

With regard to the fourth c a l x ai’ adinn EUI inientional ~nisreprcsentati~nf~aud,

defendants move to dismiss based on statute of limitntions, for failure to state a cause of a c t j m
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and failure to plead with particularity. The statutc of limitations period for the fourth cause of
action for intentioiial misrep~esentatioilfraudis the longer of six years from the wrongful conduct

or IWO years from when die party knew, or should have discovered, the fraud. Sce CPLR 21 3:

Rostuca Holdings, Ltd v Polo, 23 1 AD2d 402, 403 ( 1st Ckp’t 1996). As the statute of‘linzitations

is the greater of two or six years .from when the fraud was discovered, and this action was

commenced less than six years from wlien the contrgct was entered into and the: services

performed, this claim is nut barred by the statute of limitations.

Dekndants also argue that plaintifr failed to allege that the statements were made with

scienter, that is, that defendants made stakments that they knew were false, and, thus, plaintiff

failed to state a cause of action and/or plead with particularity. Supplemental Des Rr at 5.

C,ontrary to defenddnts’ argument, however, the amended coinplaint does contain such

allegations: “Defendmls made false raprcsentations, promises, guarantees and hreatu to plaintif€.

. . willfulIy and knowingly.” Am CompllI 61 (emphasis added). Plaintiff>s allegations that the

represeiitatians were madc by defendants and known to be fdse are sufficient to adequately state a

claim of fraud and prevent dismissal a l this juncture. ‘Thus.the motion to dismiss the fourth came

of action is denied.

5. Puni live Dnrnugcs and Attorneys’ Fees

Dekndanls move to dismiss the tifill cause of action for punitive damages and the sixth

cause ol’tlclioii For attorneys’ fees lor fail~irelo stale ;z cause of’action. arguing that they are not

separate causes of action and are not recoverable If lhz General Business IAW claim is dismissed.

The motion to dismiss the fifth and sixth Causes o f action IS granted. Plaiiittrff s requested reliefof

punitive damages atid attorneys’ fees is predicated on plaintiffs cause oP action for defendaiits’

violation of GBL 9 349, which specifically allows fur- rccovery of punitive damages arid atiorneys’

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Pees. Since plaintiffs cause 01action based on UBL, 5 349 has been dismissed herein, the lifih
and sixth causes of action are also dismissed.

6 . Negligent Infliction of Emotional Distress and

Intentional Inlliction 01‘ Etnulional Distress

With regard to the seventh cause of actioir Cor negiigcilt infliction of emotional distress and

the eighih cause of action for inteiitional iiiflictioii of ernc>lioiinldistress, defendants.move to

dismiss fofclr failure to state a cause or actiori and 011 statute of limitations grounds. The allegations

set forth in the complaint fail tu rise io tlii: levcl necessary to bring cl,2ims for intentional and

negligent infliction of enioiional distrcss. A party bnnging a claim for inlliction of emotional

distrcss, whether intentioiial or negligent. must show “allqptions that the defendant’s conduct is

30 outrageous in character, and so extrem.e i.n degree, RS to go beyond all possible bounds of

decency, m d to be regarded us atrocious, and utterly inlolerable in a civilized comniunify.”

Rerrios v Our h d v of’Mcrcy &fed CCr, 20 AD3d 36 1 36;! (1st Dep’t ZOOS) (internal quotations

omitled). In this case. plaiiitii’f fails to allege actionablc conduct that would rise to the Level of

negligent or inlmtionczl infliction of einolioizal distress. A simple breach of contract for €‘ailing to

provide adequate photography services ts no1 the kind of “outrageous” conduct necessary to

support a claim for infliction oi crnotionizl disi rcss; neither does a claim of attempting to collect

payment wrongfully. Id. Thus, 1he seventh and eighth causes of action are subject to dismissal

under C:PLlI 32 1 1(a)(7), for failure io state tlinse CBLSES of action.

7. bidividrral Defendants

With respect to all causes of action, defendants seek 10 dismiss the complaint as to the

individual defendants, contending that they are riot proper paslies as plaintiff contracted with the
corporate entity. All the iildividual defkntlantx assert that they are not properly in tliis lawsuit

becaustl the contract and sewices at issue are betwecii 1~1aiiitifTand H&H, not them individually,

and at least one of them is 110 longer an eiiiployee of H&TI.

In opposition, plaintiff coratends that since El[ & 1-1 Photographers is registered by the

Secretary of State as a pa.rhiership,and Kurt Flied and Harold Gillet are listed as parhers oftlie

partnership, they may be personally liable for the debts of the partnership and, thus, are valid

parties herein.6 Plaintif[ has attached as R ~ exhibit

I a copy of the partnership docnments located ii:

the Bronx Couiity Clerk rccords, in support of his position that they should not be dismissed froin

the case. See Frederick I<. McGowen Afirmation in Opp, Exli C.

A review of the contract appears to indicate that plaintiff c,vntracted with defendant H & €4

Photographers & Video Productions, ;i partnership, and riot the corporate cnt,ity, as is argued by

defendants. Althuugh dcfendants firs1 ccmtend that the individual defeendants shou.lclbe dismissed
4 ’, .
from this case, in their Reply, it is admitt.ed that: “While Defendants contest the allegations of

Plaintiff that would nialce hein individually liable, should any causes of action survive this

motion, Defendants acknowledge that a i-riableissue of h c t exists concerning the issue ofwhether

the natural parties should be defendants berein.” Peter Wessel Reply Affirniation at 3. At this

juncl.ure, and in light of the supporting documeiitn,tion,allegations by plaintiff and

acknowledgment by defendants, it is premature lo dismiss such defendants listed as partners.

Thus, the motion to dismiss is denied a to Kurt Fried anti Harold GilleL

With regard to defendants Dauiel Fried and 1,awrence Gillet,they are not listed as partners

in H&l-Z and there i s no dispute that they are solely employees of H&H. Plaintiff alleges that, in

‘Plaintiff provided no case law on this issue.

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negotiming the contract, pldntifl spoke to these employees, Although allegedly these are the

individuals with whom plaintiff interacted and negoliated, employees of a corporation or a

partnership cannot be held personally liable absent piercing the corporate veil, which is not relief

being snuglit herein. See AIbstdiz v Elany Cnnfr. Corp 30 AD3d 210, 210 (1st Dep’t2006).

Thus, all causes of action against Daniel Pried a i d Lawrence Gillet are dismissed.

J3, Mobm for r)efa& Judmneiit

In motion sequence number 002, plaintiff moves a default judgment against defendant

II.&H. Photographers 01’ New York, h c + ,arguing that this defendant failed to appear in this

action. All defendant3 made R pre-aiswer motion to dismiss (motion sequence number 001) and

are being represented by tlie Law Office of Peter Wessel, PLLC. However, in executing a

stipulation consenting to a n adjournmenl‘OR motion sequence number 001, the Law Office of

Peter Wessel, PLLC signed as attorney for all defendants, except that H.&H. Photographers of

New Yark, Tnc. was accidentally omiitccl.

The motion for R default judgment against kI.&H. Photographers oCNew York, h c . is

denied. The notice o f motion for the prc-answer motion to dismiss (motion sequence number

00 1) was clear that it was being made to dismiss “each and every Defendant.” Not. ol‘Mot. at I .

As plaintiff argues thal defendant H.&H. Photographers of New York, Inc. did not appear, and not

ithat the motion was unlimely, defciidrmi FI.&H. Photographers nf‘Ncw York, Inc. is not in default.

Although H.&l-I. Photographers oiNew York, Lnc. was inislakeilly omitted from the stipulatxon 017

motion sequence number 00 1 extending the return date on defendants’ motion, it is clear that it

was not iiiteiitioiial or willful conduct b-9 such defcndant and that it always intended to defend this

action. Pricher v City t f N e w York, 25 1 AD2d 242, 242 (1 st Dep’t 1998).

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 Accordingly, it is

iomEF%D that defendants' motion to dismiss (motion sequence number 001 } is granted

to the &#tentthat the secund, rhird, fifth, sixth, sevenlli and eighth causes of action are dismissed

as to all defendants; and il i s further

OFUIERED that the iirst and fvilrth causes of actiton are dismissed as to defendants Daniel

Fried and Lawrence Oillet with costs m d disbursements; and it is further

ORDERED that, plaintifPs motion for a default judgment against defendant H.&H.

FhotaR@eru ofNew York, Tnc. (motion sequciice number 002) is denied; and il is firther
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OFUIERED that the remaining defendants are directed to serve nnd file an answer lo the

complajnt within 30 days after service oi'a copy of this order with notice of entry, and all sides

shall complete discoveiy expeditiously; and il is further

ORDERED that within 30 days of entry of this order, defendants shall serve a copy of this

order with notice of entry upon plaintiffn

Dated: