BASSINI CO LLC v. BIT BY BIT COMPUTER CONSULTANTS INC (2020)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 15, 16, 17, 18 were read on this motion to DISMISS.

Plaintiff, Bassini & Co., LLC, contracted with defendant, Bit by Bit Computer Consultants, Inc., for remote backup services for Bassini's electronic data.¹ Bit by Bit allegedly failed to provide the contracted-for services. Bassini sued, asserting several causes of action. Bit by Bit now moves under CPLR 3211 (a) (7) to dismiss one of those causes of action—Bassini's claim under General Business Law (GBL) § 349.

BACKGROUND

According to the allegations of the complaint, Bit by Bit is a technology consultant, which among other things provides remote electronic backup services. In 2013, Bassini contracted with Bit by Bit to back up Bassini's data remotely. Bassini paid Bit by Bit's recurring monthly fee for backup services from October 2013 to June 2019.

In June 2019, Bassini's internal server and its local backups were inadvertently discarded while Bassini was moving offices. Bassini contacted Steinfeld to arrange for the restoration of Bassini's data from Bit by Bit's remote backup. Steinfeld informed Bassini that Bit by Bit could not, in fact, access or provide any backed-up data for Bassini. As a result, Bassini allegedly lost years' worth of data and suffered substantial financial and reputational harm.

Bassini then brought this action against Bit by Bit and Steinfeld. Bassini has asserted claims sounding in breach of contract and unjust enrichment, negligence and negligent misrepresentation, and deceptive practices under GBL § 349. Bit by Bit now moves under CPLR 3211 (a) (7) to dismiss the GBL § 349 claim. The motion is granted.

DISCUSSION

In determining a motion to dismiss under CPLR 3211 (a) (7), a court must determine whether the factual allegations in the complaint, taken as true and construed in favor of the non-moving party, set forth a cause of action. (See Andre Strischak & Assocs., P.C. v. Hewlett Packard Co., 300 A.D.2d 608, 609 [2d Dept. 2002].) Bare legal conclusions need not be taken as true. (See Kupersmith v. Winged Foot Golf Club, Inc., 38 AD3d 847, 848 [2d Dept. 2003].)

Here, Bit by Bit moves to dismiss only Bassini's GBL § 349 claim. This statute prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” GBL § 349, though, is “directed” in particular “at wrongs against the consuming public” ; its prohibition thus applies only to “conduct of the defendant that is consumer-oriented.” (Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 NY2d 20, 24-25 [1995].) To establish for pleading purposes that the alleged deceptive acts or practices were “consumer oriented,” a plaintiff “need not show that the defendant committed the complained-of acts repeatedly.” (Id. at 25.) The plaintiff must instead allege “that the acts or practices have a broader impact on consumers at large” rather than being, a “[p]rivate contract dispute[ ] unique to the parties.” (Id.)

Here, the allegations of Bassini's complaint do not satisfy the requirement that the complained-of conduct was consumer-oriented. Rather, Bassini alleges, in essence, that it did not receive business-related services that Bit by Bit agreed to provide, that Bassini had paid for, and that Bassini was depending on Bit by Bit to provide. These allegations are the typical stuff of claims for breaching a contract and for breaching a tort duty arising from the parties' contractual relationship. But GBL § 349—and its treble-damages remedy—“was not intended to supplant an action to recover damages for breach of contract between parties to an arm's length contract.” (Teller v. Bill Hayes, Ltd., 213 A.D.2d 141, 148 [2d Dept. 1995].)

Bassini argues that Bit by Bit's actions should nonetheless be regarded as consumer-oriented, because Bit by Bit allegedly “engaged in a pattern of consumer-oriented misleading conduct whereby they charged clients for services that they did not provide at all or failed to properly provide; namely, remote electronic backup services.” (NYSCEF No. 15 at 5 [internal quotation marks omitted].) But the complaint makes this allegation only in conclusory terms upon “information and belief.” (NYSCEF No. 2 at 6 ¶¶ 39-41). These allegations, made “without indication of the sources of said information and belief,” are not sufficient. (Apfelberg v. East 56th Plaza, Inc., 78 A.D.2d 606, 607 [1st Dept. 1980].) Bassini contends that the information it needs to support this allegation is within the exclusive possession of defendants, and therefore that Bassini should be entitled to proceed to discovery on its GBL § 349 claim. That Bassini's allegations underlying its GBL § 349 claim are inadequate as pleaded is not, however, a basis for affording Bassini the right to pursue discovery to support that claim—quite the reverse.

Accordingly, it is hereby

ORDERED that defendants' motion under CPLR 3211 to dismiss Bassini's GBL § 349 claim against them is granted.

FOOTNOTES

1.   Defendant Bruce Steinfeld is Bit by Bit's president and CEO.

Gerald Lebovits, J.