POLZER v. Bank of New York, etc., et al., Defendants-Respondents. (1998)

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about May 19, 1997, which, inter alia, granted defendant Bank of New York (Delaware) (“BNY”) summary judgment dismissing plaintiffs' 40th through 43rd causes of action and granted defendant Mobil Oil Credit Corporation (“Mobil”) summary judgment dismissing plaintiffs' 50th through 53rd causes of action, unanimously affirmed, without costs.

 The grant of summary judgment to defendants BNY and Mobil was not procedurally inappropriate since those defendants either moved for or requested such relief, and all parties, in submitting documents in support of their arguments, clearly charted a summary judgment course (see, De La Poer v. Salomon Bros., Inc., 193 A.D.2d 568, 598 N.Y.S.2d 217).

 Substantively, the motion court properly determined that New York does not recognize a cause of action for “negligent enablement of impostor fraud”, and that plaintiffs otherwise failed to state a cause of action in negligence, because BNY and Mobil had no special relationship either with the impostor who stole the plaintiffs' credit information and fraudulently obtained credit cards, or with plaintiffs, with whom they stood simply in a creditor/debtor relationship (see, McCarthy v. Sturm, Ruger & Co., Inc., 916 F.Supp. 366, 368, affd. sub nom. McCarthy v. Olin Corp., 119 F.3d 148;  Purdy v. Public Adm'r of County of Westchester, 72 N.Y.2d 1, 6-7, 530 N.Y.S.2d 513, 526 N.E.2d 4;  Trustco Bank, N.A. v. Cannon Bldg. of Troy Assocs., 246 A.D.2d 797, 668 N.Y.S.2d 251;  see also, Leigh Co. v. Bank of New York, 617 F.Supp. 147).

 To the extent that plaintiffs pleaded causes of action based on intentional or negligent infliction of emotional distress or prima facie tort, the motion court properly granted summary judgment dismissing those claims as well, because there was no evidence of ill will, malice or extreme outrageous conduct, or of actual physical injury or apprehension of physical harm, and because there was no special duty owed plaintiffs by Mobil and BNY, and finally because plaintiffs failed to allege, much less offer proof of, special damages (see, Whalen v. County of Fulton, 941 F.Supp. 290, 299, affd. 126 F.3d 400;  Natl. Westminster Bank, U.S.A. v. Ross, 130 B.R. 656, 686 n.6, affd. sub nom. Yaeger v. National Westminster, 962 F.2d 1).

 The motion court, in addition, properly granted summary judgment dismissing plaintiffs' statutory claims brought under the Deceptive Acts & Practices Act (General Business Law § 349).   Assuming arguendo that plaintiffs' complaints are consumer-oriented, and that the complained of action or inaction by BNY or Mobil was somehow improper, plaintiffs failed to make the requisite showing that the complained of conduct was deceptive or misleading to them (see, Varela v. Investors Ins. Holding Corp., 81 N.Y.2d 958, 598 N.Y.S.2d 761, 615 N.E.2d 218).   An action does not compensate for “ frustration” (see, Goldberg v. Manhattan Ford Lincoln-Mercury, Inc., 129 Misc.2d 123, 129, 492 N.Y.S.2d 318) and, as noted, plaintiffs have failed to demonstrate any damages or actual loss.   In addition, because the alleged offensive acts or omissions ceased several years before the commencement of this action, the motion court properly determined that there was no basis for an injunction (see, People by Lefkowitz v. Alexanders Dept. Store, Inc., 42 A.D.2d 532, 344 N.Y.S.2d 719, lv. denied 33 N.Y.2d 517, 348 N.Y.S.2d 1028, 303 N.E.2d 709).

 In dismissing plaintiffs' statutory claims, the motion court also properly determined that the acts or omissions that are alleged to have violated General Business Law § 349 were protected by the qualified immunity granted pursuant to the Federal Fair Credit Reporting Act (15 USC § 1681h [e] ), since General Business Law § 349[d] provides that it is a complete defense if the alleged act or practice complies with the rules and regulations of, and the statutes administered by, inter alia, the Federal Trade Commission (see, Thornton v. Equifax, Inc., 619 F.2d 700, 702-703, cert. denied 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41;  Whelan v. Trans Union Credit Reporting Agency, 862 F.Supp. 824, 829 n.6;  Yonter v. Aetna Finance Co., 777 F.Supp. 490;  Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 23-26, 623 N.Y.S.2d 529, 647 N.E.2d 741).

Finally, the motion court properly determined that plaintiffs failed to demonstrate, even to the extent necessary to avoid summary judgment, that BNY and Mobil were liable pursuant to General Business Law § 703 et seq.

Plaintiffs' remaining arguments for affirmative appellate relief are unavailing.

MEMORANDUM DECISION.