Taylor v Radius Global Solutions, LLC

Appellate Term of the Supreme Court, Appellate Term, Second Department, 9th And 10th Judicial Districts

Decided on July 29, 2025

2024-280 N C

Present: : Gretchen Walsh, J.P., Elena Goldberg-Velazquez, Joseph R. Conway, JJ

Sessions, Israel & Shartle, LLC (Jay I. Brody of counsel), for appellant. Barshay, Rizzo & Lopez, PLLC (Adam G. Unikowsky of counsel), for respondent.

Appeal from an order of the District Court of Nassau County, First District (Norman A. Sammut, J.), dated February 28, 2024. The order, insofar as appealed from, denied the branches of defendant's motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (3) and (7), and denied defendant's cross-motion seeking costs in the form of actual expenses reasonably incurred and attorneys' fees.

ORDERED that the order, insofar as appealed from, is modified by providing that defendant's motion to dismiss the complaint is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

By summons and verified complaint dated November 16, 2022, plaintiff commenced this action to recover damages for alleged violations of General Business Law § 349 and the Fair Debt Collection Practices Act (FDCPA) (15 USC § 1692 et seq.), and for negligence per se and negligence in connection with his receipt of a debt collection letter from defendant dated January 19, 2022. On or about April 11, 2023, plaintiff filed an amended complaint asserting the same causes of action and adding a cause of action for negligent misrepresentation based on his receipt of the same debt collection letter. The allegations in the amended complaint are premised on three different theories of liability: (1) that defendant disclosed plaintiff's personal identifying information, including his social security number, to a third-party mailing vendor who prepared and mailed the debt collection letter, exposing plaintiff to "the risk of identity theft" ("mailing vendor" theory of liability); (2) that the debt collection letter contained false and misleading representations because it shortened the 30-day validation period required under the FDCPA ("shortened validation period" theory of liability); and (3) that the debt collection letter contained false and misleading representations because it "misrepresent[ed] the character, amount, or legal status of the debt," and claimed that plaintiff owed money that he did not owe ("debt not owed" [*2]theory of liability). The "mailing vendor" theory of liability is the basis of the second and fourth causes of action, asserting violations of the FDCPA and negligence, respectively, and part of the first and third causes of action, asserting violations of General Business Law § 349 and negligence per se, respectively. The "shortened validation period" and "debt not owed" theories of liability are the bases of part of the first and third causes of action, and the fifth through eighth causes of action asserting violations of the FDCPA, negligence per se, negligence, and negligent misrepresentation, respectively. With respect to all of the causes of action, plaintiff alleged that defendant's actions caused him to sustain the following damages: "fear, stress, confusion, anxiety, aggravation, annoyance, loss of time, loss of enjoyment of life, and the incurrence of attorneys' fees." Plaintiff also claimed that defendant's conduct will cause him to sustain injuries in the future.

Defendant moved to dismiss the amended complaint for lack of subject matter jurisdiction (see CPLR 3211 [a] [2]), lack of standing (see CPLR 3211 [a] [3]), and for failure to state a cause of action (see CPLR 3211 [a] [7]). Plaintiff opposed the motion, and cross-moved for the imposition of sanctions against defendant and its counsel (see Rules of Chief Admr of Cts [22 NYCRR] § 130-1.1), based on what plaintiff claimed was defendant's frivolous motion to dismiss the complaint. Thereafter, defendant cross-moved to recover the costs incurred in defending against plaintiff's frivolous cross-motion (see Rules of Chief Admr of Cts [22 NYCRR] § 130-1.1). By order dated February 28, 2024, the District Court (Norman A. Sammut, J.) denied defendant's motion to dismiss the complaint, and denied plaintiff's cross-motion for sanctions and defendant's cross-motion for costs. Defendant appeals from so much of the order as denied the branches of its motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (3) and (7), and its cross-motion for costs.

"Where a CPLR 3211 (a) (3) motion is based upon an alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law" (Sizova v Union Mut. Fire Ins. Co., 217 AD3d 1007, 1007-1008 [2023] [internal quotation marks omitted]; see U.S. Bank Trust, N.A. v Carter, 164 AD3d 539, 542 [2018]; Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 59-60 [2015]). "To defeat a defendant's motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff's submissions raise a question of fact as to its standing" (Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d at 60; see Wilmington Trust, N.A. v Teo, 204 AD3d 735, 736-737 [2022]). Generally, a plaintiff has common-law standing to commence an action if "it has suffered an 'injury-in-fact' " (Matter of Festa v Town of Oyster Bay, 210 AD3d 678, 679 [2022]; see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1991]). "The injury-in-fact requirement necessitates a showing that the party has an actual legal stake in the matter being adjudicated and has suffered a cognizable harm that is not tenuous, ephemeral, or conjectural but is sufficiently concrete and particularized to warrant judicial intervention" (Matter of Festa v Town of Oyster Bay, 210 AD3d at 679-680 [internal quotation marks omitted]; see Matter of Mental Hygiene Legal Serv. v Daniels, 33 NY3d 44, 50 [2019]). If a plaintiff alleges that a statutory violation has occurred, the plaintiff "must also demonstrate that the injury asserted falls within the zone of interests or concerns sought to be promoted or protected by the statutory provision" in order to possess common-law standing (Matter of Melrose Credit Union v [*3]City of New York, 161 AD3d 742, 745 [2018] [internal quotation marks omitted]; see Matter of Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 23 NY3d 1, 6 [2014]).

At the outset, we note that plaintiff's contention that he possessed statutory standing under the FDCPA and General Business Law § 349 is improperly raised for the first time on appeal and, therefore, we only consider whether defendant demonstrated, prima facie, plaintiff's lack of common-law standing (see e.g. Kraus v Credit Control Servs., Inc., —AD3d—, 2025 NY Slip Op 02336, *2 [2025]; Green v Forster & Garbus, LLP, —AD3d—, 2025 NY Slip Op 02324, *2 [2025]; Bank of NY Mellon v Gordon, 171 AD3d 197, 207 [2019]; Matter of Quast v Westchester County Bd. of Elections, 155 AD3d 674, 675 [2017]).

With respect to the mailing vendor theory of liability, the risk of future identity theft and other future harms do not constitute an "injury-in-fact" sufficient to confer common-law standing, because these injuries are too conjectural (see Greco v Syracuse ASC, LLC, 218 AD3d 1156, 1158 [2023]; Warren v Halsted Fin. Servs., LLC, — Misc 3d —, 2025 NY Slip Op 25035 [App Term, 2d Dept, 9th & 10th Jud Dists 2025]). To the extent that the present "injuries" enumerated in the amended complaint, such as emotional injuries and attorneys' fees, resulted from plaintiff's fear of potential identity theft, they do not constitute an injury-in-fact because a "[p]laintiff cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending," and there were no allegations that plaintiff's data had been misused in the over one-year period between the alleged disclosure and the filing of the amended complaint (Greco v Syracuse ASC, LLC, 218 AD3d at 1158 [internal quotation marks omitted]). Consequently, the second, fourth, and the portions of the first and third causes of action premised on this theory of liability are dismissed for lack of common-law standing.

We need not decide whether plaintiff has common-law standing to assert the remaining portions of the first and third causes of action, and the fifth through eighth causes of action, as, in any event, these claims must be dismissed pursuant to CPLR 3211 (a) (7) (see West 63 Empire Assoc., LLC v Walker & Zanger, Inc., 107 AD3d 586, 586 [2013]; Lake v Kaleida Health, 60 AD3d 1469, 1470 [2009]; Matter of Malloy v Incorporated Vil. of Sag Harbor, 12 AD3d 107, 108 [2004]). "On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Norment v Interfaith Ctr. of NY, 98 AD3d 955, 956 [2012] [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87 [1994]). "[H]owever, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration" (Simkin v Blank, 19 NY3d 46, 52 [2012] [internal quotation marks omitted]; see Barbetta v NBCUniversal Media, LLC, 227 AD3d 763, 765 [2024]). Additionally, "[d]ismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [*4][2017]; see Barbetta v NBCUniversal Media, LLC, 227 AD3d at 765-766; Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 134 [2014]).

The first cause of action alleged violations of General Business Law § 349. To state a cause of action under General Business Law § 349, a "plaintiff must allege that: (1) the defendant's conduct was consumer-oriented; (2) the defendant's act or practice was deceptive or misleading in a material way; and (3) the plaintiff suffered an injury as a result of the deception" (Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 NY3d 169, 176 [2021]). Here, in the portion of this cause of action premised on the "shortened validation period" and "debt not owed" theories of liability, plaintiff failed to sufficiently allege that "defendant's conduct was consumer-oriented" (id.). Although plaintiff stated that defendant's "actions are consumer-oriented in that they are directed to, and targeted at, New York consumers," and that defendant's "conduct has a broader impact on consumers at large as [defendant] has acted similarly with thousands of other New York consumers and has engaged in the same conduct described herein thousands of times," these allegations are conclusory (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 320-321 [1995]; Kilgore v Ocwen Loan Servicing, LLC, 89 F Supp 3d 526, 536 [ED NY 2015]). The specific allegations that defendant shortened the validation period and made false and misleading representations concerning the character, amount, and/or legal status of the debt are particular to this plaintiff, and do not involve other consumers (see New York Univ. v Continental Ins. Co., 87 NY2d at 321; Capital One Bank [USA], N.A. v Iqbal, 56 Misc 3d 136[A], 2017 NY Slip Op 51009[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Castillo v Kenneth K. Frenkel, P.C., 30 Misc 3d 85, 88 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Consequently, the portion of the first cause of action premised on the "shortened validation period" and "debt not owed" theories of liability is dismissed for failure to state a cause of action.

The remaining portion of the third cause of action for negligence per se must be dismissed in light of plaintiff's failure to state a General Business Law § 349 claim in the first cause of action premised on the "shortened validation period" and "debt not owed" theories of liability (see generally Klein v Catholic Health Sys. of Long Is., Inc., 231 AD3d 797, 798 [2024]).

The fifth cause of action alleged violations of sections 1692e, 1692f, and 1692g of the FDCPA based upon allegations that the debt collection letter contained false and misleading representations. To state a cause of action under the FDCPA, a plaintiff must allege that he or she is a "consumer who allegedly owed the debt or a person who has been the object of efforts to collect a consumer debt," that defendant is a "debt collector," and that "defendant . . . engaged in an act or omission in violation of the FDCPA's requirements" (Johnson v Hunter Warfield, Inc., 2022 WL 1421815, *3, 2022 US Dist LEXIS 81419, *5 [ND NY, May 5, 2022, No. 1:22-cv-00122] [internal quotation marks omitted]; see Skvarla v MRS BPO, LLC, 2021 WL 2941118, *2, 2021 US Dist LEXIS 129323, *4 [SD NY, July 12, 2021, No. 21 Civ. 55]). Upon a review of the amended complaint and debt collection letter, we find that plaintiff has failed to sufficiently plead the requisite elements of these violations. While section 1692g (b) requires a debt collection letter to provide plaintiff 30 days to dispute the debt or request the name and address of the original creditor, and 12 CFR 1006.34 (b) (5) provides that the 30-day validation period is measured from the date plaintiff receives the debt collection letter or is assumed to have received [*5]the debt collection letter, the factual allegations supporting plaintiff's claim that the letter stated a deadline contrary to the FDCPA's required validation period were "upon information and belief." More specifically, plaintiff stated that, "upon information and belief," the debt collection letter was mailed after January 19, 2022. However, plaintiff has personal knowledge of when the letter was actually received. Where a plaintiff has personal knowledge of relevant facts supporting his claim, he may not plead facts "upon information and belief" (see e.g. Hammond v Citizens Natl. Bank of Potsdam, 260 AD 374, 376 [1940]). Consequently, plaintiff failed to state a cause of action for a violation of section 1692g of the FDCPA.

With respect to plaintiff's claims that sections 1692e and 1692f of the FDCPA were also violated, his allegations that he did not owe a debt of $195.31 to the creditor "at the time [defendant] alleged [he] did," and that he did not have an account number with certain digits with the creditor "at the time [defendant] alleged that [he] did" were insufficient to allege that the debt collection letter was "false and misleading" under section 1692e, because these allegations do not dispute the character, amount, or legal status of the debt (see Rosa v Mandarich L. Grp., LLP, 2024 WL 871209, *12, 2024 US Dist LEXIS 35499, *36 [SD NY, Feb 29, 2024, No. 22-cv-4720 [LJL]; Dick v Enhanced Recovery Co., LLC, 2016 WL 56785556, *4-5, 2016 US Dist LEXIS 135789, *7-9 [ED NY, Sept. 28, 2016, No. 15-CV-2631 (RRM)]). Further, these allegations, even if true, would not constitute material misrepresentations from the perspective of the "least sophisticated consumer" (Rosa v Mandarich L. Grp., LLP, 2024 WL 3763799, *12, 2024 US Dist LEXIS 35499, *36 [internal quotation marks omitted]; see Cohen v Rosicki, Rosicki & Associates, P.C., 897 F 3d 75, 85-86 [2d Cir 2018]; Dick v Enhanced Recovery Co., LLC, 2016 WL 56785556, *4-5, 2016 US Dist LEXIS 135789, *7-9), because these alleged misrepresentations would not "frustrate a consumer's ability to intelligently choose his or her response" (Cohen v Rosicki, Rosick & Assocs., P.C., 897 F 3d at 86). Plaintiff has also failed to state a claim that defendant violated FDCPA § 1692f, because plaintiff "has not alleged any additional facts to support a violation of section 1692f beyond those alleged to support his other claims" that defendant violated the FDCPA (Dick v Enhanced Recovery Co., LLC, 2016 WL 5678556, *7, 2016 US Dist LEXIS 135789, *18-19; see Foti v NCO Fin. Sys., Inc., 424 F Supp 2d 643, 667 [SD NY 2006]).

The sixth cause of action for negligence per se must be dismissed in light of the dismissal of plaintiff's General Business Law § 349 and FDCPA causes of actions (see Klein v Catholic Health Sys. of Long Is., Inc., 231 AD3d at 798). Further, to the extent that plaintiff is alleging that defendant violated General Business Law § 601 in this cause of action, there is no private right of action under General Business Law § 601, and thus, plaintiff cannot base a negligence per se claim on a violation of that statute (see General Business Law § 602 [2]; Varela v Investors Ins. Holding Corp., 81 NY2d 958, 961 [1993]; Conboy v AT & T Corp., 241 F3d 242, 258 [2d Cir 2001]; Rider v Uphold HQ Inc., 657 F Supp 3d 491, 503 [SD NY 2023]).

The seventh cause of action alleged negligence. To state a cause of action for negligence, a plaintiff is required to allege "(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) [an] injury proximately resulting therefrom" (Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 [2016]; see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]). Here, plaintiff failed to plead any factual allegations supporting his conclusions that he [*6]was not provided with "sufficient time to dispute the allege debt," or that defendant "attempt[ed] to collect money" that plaintiff "did not owe." It is noted that plaintiff did not provide an affidavit in opposition to defendant's motion; he only submitted an attorney's affirmation. However, the statements made by plaintiff's counsel in his affirmation and in the respondent's brief suggesting that plaintiff never incurred this debt do not cure the deficiencies in plaintiff's complaint, since plaintiff's counsel has no personal knowledge of the facts (see generally Mobil Oil Corp. v Penna, 139 AD2d 501, 501 [1988]). Consequently, plaintiff failed to state a cause of action for negligence (see e.g. Jennings v Metropolitan Transp. Auth., 226 AD3d 662, 663 [2024]).

The eighth cause of action alleged negligent misrepresentation. To plead a cause of action for negligent misrepresentation, a plaintiff must allege: "(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information" (Ginsburg Dev. Cos., LLC v Carbone, 134 AD3d 890, 894 [2015] [internal quotation marks omitted]; see J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148 [2007]). The reasonable reliance element includes the requirement that the plaintiff "act[ed] or failed to act [on the information] to their damage" (White v Guarente, 43 NY2d 356, 363 [1977]). As the complaint failed to state how plaintiff "act[ed] or failed to act [on the information] to [his] damage" (id.), the eighth cause of action is dismissed pursuant to CPLR 3211 (a) (7).

With respect to defendant's cross-motion for costs, we find that the District Court did not abuse its discretion in declining to award costs, as there was insufficient evidence to conclude that plaintiff's motion for sanctions was filed "primarily to delay or prolong the resolution of the litigation," or to harass defendant (Rules of Chief Admr of Cts [22 NYCRR] § 130-1.1 [c] [2]; see Komolov v Segal, 96 AD3d 513, 514 [2012]).

Accordingly, the order, insofar as appealed from, is modified by providing that defendant's motion to dismiss the complaint is granted.

WALSH, J.P. and GOLDBERG-VELAZQUEZ, J.

CONWAY, J, taking no part.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: July 29, 2025