TEPPER v. CABLEVISION SYSTEMS CORPORATION (2005)

In an action, inter alia, to recover damages for violation of Public Service Law §§ 224-a and 226, and General Business Law § 349, for breach of certain franchise agreements and contracts, and for unjust enrichment, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Rudolph, J.), entered March 11, 2004, which granted the defendants' cross motion for summary judgment dismissing the complaint and denied, as academic, their motion for class action certification.

ORDERED that the order is affirmed, with costs.

On their cross motion for summary judgment, the defendants met their burden of establishing their entitlement to judgment as a matter of law on each of the causes of action (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Indeed, the defendants established that the plaintiffs did not have a private right of action under Public Service Law §§ 224-a or 226 (see Uhr v. East Greenbush Cent. School Dist., 94 N.Y.2d 32, 698 N.Y.S.2d 609, 720 N.E.2d 886;  Matter of Carrube v. New York City Tr. Auth., 291 A.D.2d 558, 738 N.Y.S.2d 67;  Walts v. First Union Mtge. Corp., 259 A.D.2d 322, 686 N.Y.S.2d 428;  Americana Petroleum Corp. v. Northville Indus. Corp., 200 A.D.2d 646, 606 N.Y.S.2d 906;  see also Public Service Law §§ 211, 224[3], 224-a[7][a] ).   The defendants also established that the plaintiffs did not have standing to seek redress for alleged violations of certain provisions of certain franchise agreements to which they were not parties (see Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 495 N.Y.S.2d 1, 485 N.E.2d 208).   The defendants further established that they did not breach any relevant contract's implied covenant of good faith and fair dealing (cf. 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 746 N.Y.S.2d 131, 773 N.E.2d 496;  Dalton v. Educational Testing Serv., 87 N.Y.2d 384, 639 N.Y.S.2d 977, 663 N.E.2d 289).   In addition, the defendants established that they did nothing materially deceptive or misleading which caused the plaintiffs to sustain an actual injury (see General Business Law § 349;  Stutman v. Chemical Bank, 95 N.Y.2d 24, 709 N.Y.S.2d 892, 731 N.E.2d 608;  Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 698 N.Y.S.2d 615, 720 N.E.2d 892;  Canario v. Gunn, 300 A.D.2d 332, 751 N.Y.S.2d 310;  Drepaul v. Allstate Ins. Co., 299 A.D.2d 391, 749 N.Y.S.2d 439;  Benjaminov v. Republic Ins. Group, 241 A.D.2d 473, 660 N.Y.S.2d 148).   Finally, the defendants established that they were not unjustly enriched at the plaintiffs' expense (see Citibank, N.A. v. Walker, 12 A.D.3d 480, 787 N.Y.S.2d 48).

In response, the plaintiffs failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., supra, at 323, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Therefore, the Supreme Court properly granted the defendants' cross motion for summary judgment dismissing the complaint and denied, as academic, the plaintiffs' motion for class action certification (see Heller v. Coca-Cola Co., 230 A.D.2d 768, 646 N.Y.S.2d 524;  Rapp v. Dime Sav. Bank of N.Y., 64 A.D.2d 964, 408 N.Y.S.2d 540, affd. 48 N.Y.2d 658, 421 N.Y.S.2d 347, 396 N.E.2d 740).

The plaintiffs' remaining contentions are without merit.