USMMA v. LLC (2026)

Argued—March 12, 2026

DECISION & ORDER

In an action to recover damages for negligence, breach of contract, and violations of General Business Law § 349, the defendant appeals from an order of the Supreme Court, Nassau County (Conrad D. Singer, J.), entered September 3, 2025.  The order, insofar as appealed from, denied those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the third cause of action and so much of the complaint as sought an award of attorneys' fees.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the third cause of action and so much of the complaint as sought an award of attorneys' fees are granted.

“On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Hughes v. Vento, 226 AD3d 753, 754;  see Leon v. Martinez, 84 N.Y.2d 83, 87–88).

General Business Law § 349(a) declares unlawful all “[u]nfair, deceptive, or abusive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state” (see North State Autobahn, Inc. v Progressive Ins. Group Co., 102 AD3d 5, 11).  “To successfully assert a claim under General Business Law § 349(h), ‘a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice’ ” (id., quoting City of New York v. Smokes–Spirits.Com, Inc., 12 NY3d 616, 621).  “ ‘[P]arties claiming the benefit of [General Business Law § 349(h) ] must, at the threshold, charge conduct that is consumer oriented’ ” (id., quoting New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 320).  “The conduct need not be repetitive or recurring but defendant's acts or practices must have a broad impact on consumers at large” (New York Univ. v. Continental Ins. Co., 87 N.Y.2d at 320;  see Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 N.Y.2d 20, 25).  “Private contract disputes, unique to the parties, ․ [do] not fall within the ambit of the statute” (Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 N.Y.2d at 25;  see New York Univ. v. Continental Ins. Co., 87 N.Y.2d at 320).

Here, accepting as true the facts alleged in the complaint and according the plaintiff the benefit of every possible favorable inference, the plaintiff's allegations that the defendant violated General Business Law § 349(h) failed to state a cause of action (see Teller v. Bill Hayes, Ltd., 213 A.D.2d 141, 148).  The plaintiff failed to allege that the defendant's acts or practices had a broad impact on consumers at large, and the plaintiff did not assert any facts that would support such an allegation.  The allegations in the complaint merely refer to a private contract dispute over the procurement of insurance coverage and the processing of a claim that is unique to these parties (see New York Univ. v. Continental Ins. Co., 87 N.Y.2d at 321;  Flax v Lincoln Natl. Life Ins. Co., 54 AD3d 992, 995).  Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action for failure to state a cause of action.

“New York follows the general rule that attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule” (WFB Realty, LLC v. R & W Brokerage, Inc., 219 AD3d 1469, 1469 [internal quotation marks omitted];  see Alpha/Omega Concrete Corp. v Ovation Risk Planners, Inc., 197 AD3d 1274, 1282).  A court may award reasonable attorneys' fees to a prevailing plaintiff in an action under General Business Law § 349 (see id. § 349[h] ).

Here, since so much of the complaint as sought an award of attorneys' fees was predicated solely upon the cause of action alleging violations of General Business Law § 349, the Supreme Court should have granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the complaint as sought an award of attorneys' fees (see General Business Law § 349[h];  Abdourahamane v Public Stor. Institutional Fund, 113 AD3d 644, 645).

DUFFY, J.P., WARHIT, VENTURA and OTTLEY, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court