Bruce Ovitz, etc., Plaintiff-Respondent, v Bloomberg L.P.,
et al., Defendants-Appellants.
2864, 603692/08
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST
DEPARTMENT
2010 NY Slip Op 7484; 2010 N.Y. App. Div. LEXIS 7557
October 21, 2010, Decided
October 21, 2010, Entered
NOTICE:
THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF
THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO
REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
COUNSEL: Willkie Farr & Gallagher LLP, New York (Thomas H. Golden of counsel),
for appellants.
Sperling & Slater, P.C., Chicago, IL (Greg Shinall, of the Illinois Bar,
admitted pro hac vice, of counsel), for respondent.
JUDGES: Andrias, J.P., Saxe, McGuire, Moskowitz, Freedman, JJ.
OPINION
Order, Supreme Court, New York County (Judith J. Gische, J.), entered October
7, 2009, which, to the extent appealed from, denied so much of defendants'
motion to dismiss the first, fifth and sixth causes of action, unanimously
reversed, on the law, without costs, the motion granted in its entirety, and the
complaint dismissed. The Clerk is directed to enter judgment accordingly.
In this putative class action, accepting as true the facts alleged in the
complaint (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we hold the automatic
renewal provision of the agreement between plaintiff and defendants was both
"inoperative" (General Obligations Law § 5-901) and "unenforceable" (§ 5-903),
since defendants failed to provide the requisite notice to plaintiff that the
two-year subscription term was to be automatically renewed (see Guerrero v West
23rd St. Realty, LLC, 45 AD3d 403 [2007], lv denied 10 NY3d 707 [2008];
Protection Indus. Corp. v DDB Needham Worldwide, 306 AD2d 175 [2003]). As such,
the agreement was never effectively renewed for a definite term and could have
been canceled by plaintiff at any time (see Concourse Nursing Home v Axiom
Funding Group, 279 AD2d 271 [2001]).
However, dismissal of the claims based on §§ 5-901 and 5-903 is warranted
since plaintiff makes no allegations that he paid for services he did not
receive (see Ludl Elecs. Prods. v Wells Fargo Fin. Leasing, 6 AD3d 397, 398
[2004], lv denied 3 NY3d 603 [2004]; Concourse Nursing Home v Axiom Funding
Group, 279 AD2d 271, supra [although subject equipment leases were never renewed
because lessor failed to comply with General Obligations Law § 5-901, lessee,
who continued using the equipment after the leases terminated, was not entitled
to recover rent for post-termination period]). To the extent plaintiff seeks
damages for defendants' alleged breach of these statutes, a private right of
action is not expressly created by the language of the statutes and a
legislative intent to create such a right of action is not fairly implied in the
statutory provisions and their legislative history (see e.g. Brian Hoxie's
Painting Co. v Cato-Meridian Cent. School Dist., 76 NY2d 207, 211 [1990]).
The complaint also fails to state a cause of action under General Business
Law § 349. Plaintiff, a resident of Illinois, was not deceived in New York State
(see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 325 [2002]). Nor did
plaintiff allege actual injury resulting from the alleged deceptive practices,
since defendants did not commence enforcement proceedings against plaintiff and
are not seeking to collect fees or payments from plaintiff in connection with
the cancellation of his subscription (see Han v Hertz Corp., 12 AD3d 195 [2004])
.
Furthermore, declaratory and injunctive relief is unwarranted in this case,
since no justiciable controversy remains to support the claim for declaratory
relief (see Spitzer v Schussel, 48 AD3d 233, 234 [2008]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE
DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 21, 2010