THOMPSON v. PARKCHESTER APARTMENTS CO (1998)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 1, 1997, which denied defendant's motion to dismiss the complaint, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed, with leave to plaintiff to replead within twenty days from the service of this order with notice of entry.   The Clerk is directed to enter judgment accordingly.

 Only the Attorney General has standing to commence an action alleging false or deceptive practices in a condominium offering plan (General Business Law art. 23-A [the Martin Act], §§ 352 et seq.).  While there is still a private cause of action for common-law fraud (CPC Intl. v. McKesson Corp., 70 N.Y.2d 268, 519 N.Y.S.2d 804, 514 N.E.2d 116), “private plaintiffs will not be permitted through artful pleading to press any claim based on the sort of wrong given over to the Attorney-General under the Martin Act” (Whitehall Tenants Corp. v. Estate of Olnick, 213 A.D.2d 200, 623 N.Y.S.2d 585, lv. denied 86 N.Y.2d 704, 631 N.Y.S.2d 608, 655 N.E.2d 705).   The complaint herein, to the extent that it alleges common-law fraud, active concealment and breach of an implied covenant of good faith, suffers from just such a defect.   In order to establish a viable independent claim for deception and false representation, plaintiff must plead, within the appropriate period of limitations (CPLR 213[8];  see, Unibell Anesthesia, P.C. v. Guardian Life Ins. Co. of Am., 239 A.D.2d 248, 658 N.Y.S.2d 14), a unique set of circumstances whose remedy is not already available to the Attorney General (15 E. 11th Apt. Corp. v. Elghanayan, 220 A.D.2d 295, 296, 632 N.Y.S.2d 119, lv. dismissed 87 N.Y.2d 1050, 644 N.Y.S.2d 140, 666 N.E.2d 1053).

Whether such a cause of action should be framed in terms of consumer protection from deceptive practices (General Business Law § 349[a];  see, Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 623 N.Y.S.2d 529, 647 N.E.2d 741), as plaintiffs argued in response to defendant's dismissal motion, is not for us to decide at this time.   Suffice it to say that the complaint before us, although pleaded with particularity, was defective and should have been dismissed.

MEMORANDUM DECISION.