PRESTIGE MARKETPLACE RR CORP v. JRL LLC (2025)

I. Statement Pursuant to CPLR § 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 001) numbered 5-12, 22-32, 34-35 were read on this motion. The Court has considered the following papers on the motion of defendant Starbucks Corporation d/b/a Starbucks Coffee Company (“Starbucks”) to dismiss the Complaint pursuant to CPLR § 3211 [a] [1], CPLR § 3211 [a] [3], and CPLR § 3211 [a] [7]:

1. Notice of Motion to Dismiss, dated October 3, 2025; Affirmation of Daniel R. Milstein in Support with Exhibits 1-4; and Memorandum of Law in Support.

2. Affirmation in Opposition to Defendant Starbucks’ Motion to Dismiss, of L. Blake Morris, Esq., dated December 4, 2025.

3. All prior pleadings and proceedings herein, including the Summons and Verified Complaint, and the documents referenced therein.

4. Oral argument completed on the record on Motion Sequence No. 001 on December 11, 2025.

II. Background and Procedural Posture

A. The Property, the Parties’ Roles, and the Contractual Framework

Defendant #1 JRL LLC (“Landlord”) owns the real property comprised of two physically contiguous addresses: 1717 Richmond Road and 1689 Richmond Road, Staten Island, New York (collectively, the “Property”). Starbucks is the tenant of a freestanding café and drive-through located at 1717 Richmond Road (“Parcel A”). Plaintiff Prestige Marketplace RR Corp. d/b/a Fine Fare Supermarket (“Plaintiff” or “Fine Fare”) is the assignee of a supermarket lease at 1689 Richmond Road (“Parcel B”).

On April 19, 2017, Landlord and Starbucks entered into a commercial lease (the “Starbucks Lease”) for Parcel A, for operation of a café and drive-through. (NY St Cts Filing [NYSCEF] Doc No. 8). The Lease granted Starbucks, among other rights, the use of certain “Common Areas,” including parking lot and drive aisles serving the Property. (see id.).

More than two years later, on November 14, 2019, Landlord recorded with the Richmond County Clerk an Off-Site Parking and Driveway Restrictive Declaration (the “Parking Agreement”). (NY St Cts Filing [NYSCEF] Doc No. 9). The Parking Agreement: formally subdivided the Property into Parcel A (Starbucks) (see id. at pages 6-8). and Parcel B (the supermarket parcel) (see id. at page 9-10); and created “permanent reciprocal easements for the benefit of the future owners of Parcel A and Parcel B” for the “joint and shared use of the access driveway and traffic lanes running through the Parking Area and to provide access to the drive-through lane serving the proposed building on Parcel A” (the “Easement Area”). (see id.).

Schedule C to the Parking Agreement is a site plan depicting the circulation pattern of vehicles across both parcels, including the positioning and “stacking” of vehicles queued for the Starbucks drive-through within the shared drive aisles on Parcel B. (see id. at page 11). The documents reflect that the Landlord (and any future owners or tenants of both parcels) contemplated that drive-through traffic would occupy the northern driveway aisle and other portions of the Easement Area while queuing for service.

On January 1, 2023, Landlord and Starbucks executed a First Amendment to the Starbucks Lease. (NY St Cts Filing [NYSCEF] Doc No. 10). That amendment expanded the definition of “Common Areas” to include all unleased spaces on both parcels, including: the “parking lots,” the Easement Area as defined in the Parking Agreement, and parking areas on Parcel B itself. (see id. at ¶9).

Crucially, the Amendment further provides that Starbucks shall have: “the right of use and access to the Easement Areas for Tenant's operation of the Drive-Through Facility, including necessary stacking lanes,” and that any change or obstruction affecting Starbucks’ use of those areas for drive-through operations must be approved by Starbucks, except in narrow circumstances (emergency or necessary construction/repair). (see id. at ¶9 §[b]).

In short, the integrated contractual framework (Starbucks Lease, First Amendment, and Parking Agreement) grants Starbucks an unequivocal right, shared reciprocally with the Parcel B tenant, to use the drive aisles and parking areas, including the very “stacking lanes” that Plaintiff now characterizes as wrongful obstructions.

B. Plaintiff's Lease and Its Entry Onto the Property

On or about May 11, 2021, Landlord entered into a lease for Parcel B with non-party 4 Seasons Marketplace, Inc. (the “4 Seasons Lease”). (NY St Cts Filing [NYSCEF] Doc No. 7 at ¶7). According, to Plaintiff's own allegations, that lease granted the supermarket tenant the “nonexclusive right” to use the Common Areas, including the throughways, loading areas, parking areas, and roads, precisely the same shared areas already committed to Starbucks under the Starbucks Lease and later expanded by the First Amendment and Parking Agreement. (see id. at ¶8).

Starbucks opened its drive-through in February 2022 and, for approximately two years, operated a drive-through lane that, in Plaintiff's words, “serpentines” through the shared parking lot. The traffic patterns, congestion, and overall parking dynamic were in plain view of anyone visiting the Property. (NY St Cts Filing [NYSCEF] Doc No. 11).

On January 9, 2024, 4 Seasons assigned its Parcel B leasehold to Plaintiff (the “Plaintiff's Lease”). (see id.). Plaintiff alleges that it then undertook renovations and ultimately opened the Fine Fare supermarket on December 1, 2024. (see id.). By that time, Starbucks’ drive-through operation and the accompanying queue of vehicles were long-standing and observable features of the Property. Plaintiff concedes that it opened “with full knowledge” of Starbucks’ operations and the necessity that drive-through customers queue in the two lanes of the parking lot.

Plaintiff's Lease, as alleged, likewise confers only a non-exclusive right to utilize the shared parking and drive aisles. (see id.). Thus, both tenants stand on equal contractual footing with respect to the Common Areas and Easement Area, subject to the reciprocal rights and obligations described in the Parking Agreement.

C. Plaintiff's Alleged Harms and Causes of Action

Plaintiff alleges that the “continual congestion and backup” from Starbucks’ drive-through queue causes: interference with access to purported “Fine Fare parking spaces”; delay in customers’ ability to enter and exit those spaces; and consequent economic harm, including claimed “lost revenue” in excess of $1.35 million. (NY St Cts Filing [NYSCEF] Doc No. 7).

The Complaint is not artfully labeled, but Starbucks’ memorandum correctly discerns three causes of action directed at Starbucks:

 First Cause of Action - Revocation of Certificates of Occupancy

Plaintiff seeks revocation of the certificates of occupancy for both the Starbucks premises and its own supermarket premises, based on Landlord's alleged failure to keep the Parking Area “clear and unobstructed” and purported non-compliance with the Parking Agreement.

 Fourth Cause of Action - “Trespass” / Tortious Interference with Contract

Plaintiff alleges that Starbucks has “improperly and unjustifiably” engaged in a continuing trespass by allowing its customers to obstruct the parking lot, and that this conduct is “designed to disrupt the contractual relationship between Plaintiff and [Landlord] to produce a breach of contract,” constituting tortious interference.

 Fifth Cause of Action - Deceptive Business Practices (GBL § 349)

Plaintiff alleges that Starbucks posted “easy to read” signage “welcoming the public's motor vehicles,” and that such signs, along with unspecified “tortious prohibited acts,” mislead consumers into believing that the parking area is available to Plaintiff's customers when it allegedly is not, thereby constituting deceptive business practices and entitling Plaintiff to statutory damages and attorney's fees.

Plaintiff also pleads that Starbucks’ conduct results in “spoiled food” and other harms, though the causal chain is left largely unexplained.

D. The Motion and the Opposition

Starbucks moves to dismiss under: CPLR § 3211 [a] [1], arguing that the documentary evidence (Starbucks Lease, First Amendment, and Parking Agreement) utterly refutes Plaintiff's allegations and establishes Starbucks’ right to use the Common Areas and Easement Area; CPLR § 3211 [a] [3], contending Plaintiff lacks standing to seek revocation of certificates of occupancy, a remedy confined to the Department of Buildings (“DOB”); and CPLR § 3211 [a] [7], asserting that Plaintiff fails to state claims for tortious interference or deceptive business practices as a matter of law.

Plaintiff opposes, arguing principally that: the Milstein Affirmation is defective under amended CPLR § 2106 and that exhibits 2 and 4 lack proper evidentiary foundation, citing Knust v Singh, 2024 NY Slip Op 30145 (U) [Sup Ct New York County 2024]). Plaintiff has standing to seek relief based on an alleged zoning violation, relying on Zupa v Paradise Point Assoc., Inc., (2013 NY Slip Op 31019 (U) [Sup Ct Suffolk County 2013]), Little Joseph Realty, Inc. v Babylon, (41 NY2d 738 [1977]), and Matter of CPD NY Energy Corp. v Town of Poughkeepsie Planning Bd., (139 AD3d 942 [2d Dept 2016]). The Complaint, liberally construed, states cognizable claims under the standards of Leon v Martinez, (84 NY2d 83 [1994]), Goshen v Mut. Life Ins. Co., (98 NY2d 314 [2002]), and related authorities describing the forgiving posture of pre-discovery CPLR § 3211 review.

III. Conclusions of Law

 CPLR 3211 [a] [1]

Dismissal under CPLR § 3211 [a] [1] is appropriate only where documentary evidence “utterly refutes” the plaintiff's factual allegations and conclusively establishes a defense as a matter of law. (see Goshen v Mutual Life Ins. Co., 98 NY2d 314 [2002]; Peter Williams Enters., Inc. v NY State Urban Dev Corp, 90 AD3d 1007 [2d Dept 2011]).

Documents referenced in, and integral to, the complaint may be considered on such a motion even if not annexed to the pleading itself. (see Alliance Network, LLC v Sidley Austin, LLP, 43 Misc 3d 848 [Sup Ct, New York County 2014]; Deer Consumer Prods., Inc. v Little, 32 Misc 3d 1243(A) [Sup Ct New York County 2011); Katzenellenbogen v Aaronov, 2014 WL 7149125 [Sup Ct Kings County 2014]).

 CPLR § 3211 [a] [3]

On a motion to dismiss for lack of standing, the moving defendant bears the burden of establishing, prima facie, that plaintiff lacks standing as a matter of law. (see Keach v BST & Co. CPAs, LLP, 71 Misc 3d 1204(A) [Sup Ct Albany County 2021]). The plaintiff must allege an “injury in fact” that is actual or imminent, not conjectural or speculative, and which gives the plaintiff a concrete interest in prosecuting the action.

 CPLR § 3211 [a] [7]

On a CPLR § 3211 [a] [7] motion, the Court must accept the facts alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether those facts fit within any cognizable legal theory. (see Leon v Martinez, 84 NY2d 83 [1994]; Benjamin v Yeroushalmi, 212 AD3d 758 [2d Dept 2023]).

However, the Court is not required to accept bare legal conclusions, inherently incredible factual allegations, or sweeping legal conclusions cast in the form of factual allegations. (see Ruffino v NY City Transit Auth., 55 AD3d 817 [2d Dept 2008]; Galkowski-Coira v The Price Chopper, Inc., 2023 WL 2650411 [Sup Ct New York County 2023]).

Where evidentiary material is considered, the inquiry becomes whether plaintiff has a cause of action, not merely whether plaintiff has “stated” one, and dismissal is appropriate only where the alleged material facts are “not facts at all” and no significant factual dispute exists. (see Recine v Recine, 201 AD3d 827 [2d Dept 2022]).

I. Preliminary Issue: Consideration of the Starbucks Lease, First Amendment, and Parking Agreement

Plaintiff contends that the Milstein Affirmation is defective under amended CPLR § 2106 and that Exhibit 2 (the Starbucks Lease) (NY St Cts Filing [NYSCEF] Doc No. 8) and Exhibit 4 (the First Amendment to the Lease) (NY St Cts Filing [NYSCEF] Doc No. 10) therefore may not be considered. The Court need not resolve, definitively, the sufficiency of the affirmation's form because the key documents are independently before the Court as instruments explicitly referenced in the Complaint and in Plaintiff's opposition.

Plaintiff itself pleads the existence of the Starbucks Lease, the 4 Seasons/Parcel B lease, and the Parking Agreement, and relies on those instruments to support its theory of contractual and zoning violations. Under Alliance Network, Deer Consumer Prods., and Katzenellenbogen, the Court may consider such referenced documents on a CPLR § 3211 motion, regardless of whether they are formally authenticated at this stage, because they are integral to the claims and their effect is not reasonably in dispute.

Accordingly, the Court considers the Starbucks Lease, First Amendment, and Parking Agreement, together with Schedule C, as part of the documentary record on this motion.

II. First Cause of Action - Revocation of Certificates of Occupancy (CPLR § 3211 [a] [3])

Plaintiff's first cause of action asks this Court to revoke the certificates of occupancy for both the Starbucks and Fine Fare premises, based on alleged non-compliance with the Parking Agreement and failures to maintain the Parking Area “clear and unobstructed.”

Starbucks argues that plaintiff lacks standing because the exclusive authority to revoke a certificate of occupancy lies with the DOB Commissioner under NYC Admin. Code § 28-118.17 and the New York City Charter, ch 26, § 645 [b] [3] [e]. Starbucks further relies on Matter of Baumrind v Van Amerongen, 2010 NY Misc. LEXIS 2632 [Sup Ct New York County 2010]) and related cases holding that private litigants lack standing to enforce building code provisions or certificate conditions. (see also, Alford v 72nd Tenants Corp., 2024 NY Misc. LEXIS 1190 [Sup Ct New York County 2024]; Third Ave NY Realty LLC v 1992 Third Realty LLC, 2025 NY Misc LEXIS 6889 [Sup Ct New York County 2025]; Wachtel v Park Ave & 84th St., Inc., 180 AD3d 545 [1st Dept 2020])

A. Exclusive Administrative Jurisdiction Over Certificates of Occupancy

Starbucks’ memorandum highlights that § 28-118.17 authorizes the DOB to revoke or suspend a certificate of occupancy for non-compliance with the Code or related conditions, and that the City Charter vests such enforcement authority in the Commissioner. Plaintiff identifies no statutory language conferring a private right to seek judicial revocation, and indeed, Section 6 of the Parking Agreement, on which Plaintiff heavily relies, states only that failure to comply “may result in the revocation of a building permit or certificate of occupancy,” not that any aggrieved private entity may obtain such revocation directly from a court.

In Matter of White Plains Downtown Dist. Mgt. Assn., Inc. v Spano, 15 Misc 3d 733, [Sup Ct Westchester County 2007], the court held that a private petitioner lacked standing to enforce building code violations alleged against a homeless shelter, including claims that occupancy levels exceeded those permitted by code. Likewise, in Molander v Pepperidge Lake Homeowners Assn., 25 Misc 3d 1231(A), [Sup Ct Suffolk County 2009], a plaintiff's attempt to characterize code non-compliance as a private nuisance was rejected on the basis that private parties have no authority to enforce Town or State code violations. And in Double A Property Assoc. v. Spears, 144 Misc 2d 935 [2d Dept 1989], a landlord's attempt to obtain an injunction compelling repairs to cure violations was dismissed because the enforcement mechanism lies with the municipality, not with private litigants.

Here, Plaintiff seeks not damages arising from some independent tort grounded in building-code violations, but the very remedy, revocation of certificates of occupancy, that the Code allocates to DOB. This is precisely the sort of relief that White Plains Downtown, Molander, and Double A deem beyond a private litigant's reach. The statutory scheme centralizes the issuance, modification, and revocation of certificates in the DOB, thereby precluding parallel judicial decrees initiated by private parties.

The point is reinforced by Washington v. Culotta, 13 Misc 3d 18 [2d Dept 2006], where the court held that the civil court lacked jurisdiction to issue orders effectively directing DOB to enforce alleged building code violations. The jurisdictional limitation is not merely prudential but structural: the adjudication and enforcement of code compliance are committed to administrative, not private, enforcement.

B. Plaintiff's Reliance on Zoning-Enforcement Standing Cases

Plaintiff invokes Zupa v. Paradise Point Assn., Inc., 22 AD3d 843 [2d Dept 2005], Little Joseph Realty, Inc. v. Babylon, 41 NY2d 738 [1977], and Matter of CPD NY Energy Corp. v Town of Poughkeepsie Planning Bd., 139 AD3d 942 [2d Dept 2016], to argue that a private party may seek to enjoin a zoning violation upon demonstrating “special damages” and an interest within the “zone of interests” protected by the applicable statute.

Those cases, however, address the narrower and qualitatively different question whether a private party may enjoin activities that violate zoning ordinances or land-use restrictions, e.g., the operation of uses not permitted in a district, or the failure to conform to dimensional requirements. They do not authorize private parties to usurp DOB's authority to revoke or modify officially-issued certificates of occupancy. Plaintiff cites no decision in which a court has granted a private litigant direct revocation of a certificate in the face of an explicit administrative mechanism for that remedy.

Even assuming arguendo that Plaintiff has suffered “special damages” in the form of lost revenue and parking congestion, its interest lies in the enforcement of an alleged contractual and zoning arrangement, not in the exercise of the exclusive public power to void a certificate of occupancy. The cases upon which plaintiff relies do not expand standing to that degree.

C. Restrictive Covenants and the Parking Agreement

Plaintiff seeks to ground its standing in the Parking Agreement, arguing that Starbucks and Landlord's alleged non-compliance with that Declaration justifies the extraordinary remedy of revoking both parties’ certificates of occupancy. But Plaintiff is not a signatory to the Parking Agreement, and nothing in its text confers upon Plaintiff a private right to demand revocation. As Starbucks notes, restrictive covenants on real property are disfavored and strictly construed against those seeking to enforce them (see Fader v Taconic Tract Dev., LLC, 128 AD3d 887 [2d Dept 2015]).

The plain language of the Parking Agreement creates reciprocal easements between the two parcels; it does not transform every alleged deviation in parking management into a private cause of action for certificate nullification. The most it provides is that “failure to comply may result” in revocation, which is entirely consistent with DOB's regulatory authority, not plaintiff's claimed private enforcement role.

Accordingly, the Court concludes that Plaintiff lacks standing to obtain the revocation of either Starbucks’ or its own certificate of occupancy. The first cause of action is therefore dismissed pursuant to CPLR § 3211 [a] [3], with prejudice.

III. Fourth Cause of Action - Tortious Interference (and Trespass) (CPLR § 3211 [a] [1], [a] [7])

Although styled in part as “trespass,” Plaintiff's fourth cause of action ultimately alleges “tortious interference with Plaintiff's Lease Agreement.” Starbucks contends that the claim fails as a matter of law because (i) the documentary evidence establishes Starbucks’ contractual entitlement to use the Common Areas and Easement Area; (ii) the Complaint identifies no breach of Plaintiff's Lease by Landlord; (iii) there are no facts suggesting Starbucks intentionally procured any such breach; and (iv) Plaintiff's claimed lost profits are speculative.

A. Tortious Interference with Contract

Under Lama Holding Co. v. Smith Barney Inc., (88 NY2d 413 [1996]), tortious interference with contract requires: 1. the existence of a valid contract between plaintiff and a third party; 2. defendant's knowledge of that contract; 3. defendant's intentional procurement of the third party's breach without justification; 4. actual breach; and 5. resulting damages.

Plaintiff's allegations, taken as true, fall far short.

i. Absence of an Alleged Breach by Landlord

Plaintiff nowhere identifies a specific provision of its Lease with Landlord that has been breached. The Complaint does not allege, for example, that Landlord promised Plaintiff exclusive parking, or a minimum number of reserved spaces, or that Landlord undertook to curtail Starbucks’ lawful use of the Easement Area. To the contrary, Plaintiff acknowledges that its Lease (through the assignment of the 4 Seasons Lease) grants only a non-exclusive right to use the shared parking and throughways.

As Starbucks correctly argues, one cannot be said to “procure” a breach of contract where the alleged conduct, here, operating a drive-through and using the stacking lanes, is fully contemplated and authorized by the governing instruments. The Starbucks Lease, First Amendment, and Parking Agreement give Starbucks the right to use precisely the drive aisles and stacking lanes that Plaintiff complains about.

ii. Lack of Intentional Procurement Without Justification

The Complaint is devoid of non-conclusory allegations that Starbucks acted with the intent to induce Landlord to breach Plaintiff's Lease. Starbucks’ operation of its pre-existing drive-through in accordance with its own Lease, years before Plaintiff arrived, cannot plausibly be recast as an intentional, unjustified campaign to induce landlord's breach. Continuing to do what one is expressly authorized to do under one's own lease is the very opposite of “unjustified” interference.

iii. Documentary Evidence Refuting Interference

The integrated documents show that both Starbucks and Plaintiff (through its predecessor) were granted co-equal, non-exclusive rights to the Common Areas and Easement Area. Schedule C shows that the very queuing pattern of drive-through vehicles that Plaintiff now decries was anticipated and memorialized in the recorded Parking Agreement.

Under Peter Williams, documentary evidence that “utterly refutes” the factual premise of a claim warrants dismissal under CPLR § 3211 [a] [1]. Here, the complained-of “obstruction” is, in fact, the very use of the property that the parties’ contracts authorize and protect. Simply put, there is nothing for Starbucks to “interfere” with—its conduct constitutes the normal, permitted use of the easement.

B. Trespass Theory

Starbucks correctly notes that, to the extent Plaintiff also pleads trespass, the claim fails for similar reasons. Trespass requires an intentional entry onto the land of another without justification or permission. (see Leavitt Enter., Inc. v Two Fulton Sq., LLC, 181 AD3d 662 [2d Dept 2020]).

Here, Starbucks’ customers and invitees access the parking lot and drive aisles pursuant to rights expressly granted in the Starbucks Lease, First Amendment, and Parking Agreement. Plaintiff, in turn, holds only a non-exclusive possessory interest in those very same areas. There can be no unlawful “entry” onto land exclusively possessed by Plaintiff where the documentary record confirms that Starbucks is a lawful co-user of the space.

C. Speculative “Lost Profits” Damages

Plaintiff seeks more than $1.35 million in alleged lost revenue arising from the purported interference. Yet Plaintiff is, by its own account, a newly opened supermarket that began operations in December 2024. As Starbucks points out, in Blinds to Go (U.S.), Inc. v Times Plaza Dev., L.P., 88 AD3d 838 [2d Dept 2011], the Second Department held that “new business” lost profit claims generally cannot be recovered where there is no reasonable basis of experience upon which to estimate such profits with the requisite degree of certainty.

Plaintiff pleads no historical performance data, no before-and-after revenue comparisons, and no specific causal nexus between any identified breach and its claimed loss. The demand is thus doubly infirm: speculative as a matter of damages and untethered to any viable claim of breach or interference.

For all these reasons, the fourth cause of action, whether framed as tortious interference, trespass, or a hybrid, is dismissed pursuant to CPLR § 3211 [a] [1] and CPLR § 3211 [a] [7], with prejudice.

IV. Fifth Cause of Action - Deceptive Business Practices (GBL § 349/§ 350) (CPLR 3211(a)(7))

Plaintiff's final cause of action alleges that Starbucks engaged in “deceptive business practices” under GBL § 349 (and, by implication, § 350) by erecting signage “welcoming the public's motor vehicles” with “easy to read signs,” thereby allegedly misleading consumers into believing the parking area is available to Plaintiff's customers when, according to Plaintiff, it is not.

A. Elements of a GBL § 349/§ 350 Claim

As Starbucks notes, to state a claim under GBL § 349, a plaintiff must show that: 1. the challenged act or practice was consumer-oriented; 2. it was misleading in a material way; and 3. the plaintiff suffered an injury because of the deceptive act. (see Beers v Mars Wrigley Confectionary US, LLC, 2022 WL 493555 [SDNY 2022]; Stutman v Chemical Bank, 95 NY2d 24 [2000]). GBL § 350 (false advertising) employs essentially the same elements. (see Beers; Betzag v. BP Prods. N. Am. Inc., 2025 U.S. Dist. LEXIS 12444 [EDNY 2025]).

The standard is objective: the challenged conduct must be likely to mislead a reasonable consumer acting reasonably under the circumstances. (see Libman v Hershey Co., 2025 WL 1477866 [Sup Ct New York County 2025]; Kommer v Bayer Consumer Health, 252 F Supp3d 304 [SDNY 2017]).

B. Plaintiff Is Not a Consumer and May Not Sue Derivatively

Starbucks argues that Plaintiff, as a commercial competitor, is not a “consumer” and cannot sue under GBL § 349 solely on behalf of its customers. In Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d 200 [2004], the Court of Appeals held that a third-party insurer could not recover derivatively for alleged injuries to insureds under GBL § 349.

Here, Plaintiff styles itself as a supermarket injured when allegedly misled customers suffer “spoiled food” or parking confusion. But the statute is aimed at protecting consumer-purchasers, not competitors seeking to vindicate their customers’ putative grievances. To the extent Plaintiff seeks to stand in the shoes of its customers, Blue Cross forecloses that theory.

C. No Materially Misleading Statement Is Plausibly Alleged

Even if Plaintiff could satisfy the “consumer-oriented” prong, its allegations fail at the threshold of deception. The Complaint neither quotes nor describes the content of any specific Starbucks sign other than to say that it is “easy to read” and “welcom[es] the public's motor vehicles.”

There is no allegation that Starbucks’ signs state or imply anything about Plaintiff's parking rights, the exclusivity of the lot, or restrictions on supermarket patrons. As Starbucks notes, it is facially implausible that a reasonable consumer encountering a Starbucks drive-through sign would infer anything about the availability, or unavailability, of parking for an entirely separate supermarket tenant.

In Betzag, the federal court dismissed a similar claim where the challenged signage, though perhaps imperfect, was “accurate and not misleading” in context. And in Galkowski-Coira, a deceptive-practices claim was rejected at the pleading stage where the alleged conduct, viewed objectively, could not mislead a reasonable consumer.

Here, Plaintiff's bare assertion that Starbucks’ signs “mislead” consumers is precisely the sort of conclusory allegation that Sutherland v. Remax 2000, 20 Misc 3d 1131(A) [Sup Ct Nassau County 2008] and Ashkenazi v AXA Equitable Life Insurance Company, 2008 NY Misc LEXIS 7810 [Sup Ct New York County 2008], deem insufficient; both cases dismiss GBL claims where the plaintiff relies on nonspecific and generalized assertions of deceptive advertising.

D. No Causal Consumer Injury Is Plausibly Alleged

GBL § 349 requires not only deception but injury “as a result of” the deceptive act. As Starbucks points out, Plaintiff fails to plead any consumer transaction, any purchase decision or economic loss by a consumer, traceable to the Starbucks signage. Instead, Plaintiff offers an opaque reference to “spoiled food” and parking delays.

In Jack v. Stop & Shop Supermarket Co. LLC, 2025 NY Misc. LEXIS 949 [Sup Ct Bronx County 2025], the court dismissed GBL claims where the plaintiff did not allege that the advertisements cited in the complaint caused him to engage in a consumer transaction to his detriment or caused any actual injury. Likewise, in Brooks v. GEICO Ins. Agency, Inc., 2022 NY Misc LEXIS 9448 [Sup Ct Queens County 2022], the court dismissed a § 349 claim comprised of only conclusory allegations of deceptive conduct.

Here, Plaintiff has not alleged that any consumer saw a Starbucks sign, believed something false about parking rights, and thereby suffered any concrete economic harm. Nor has Plaintiff plausibly alleged that its own lost revenue is the product of any misrepresentation, as opposed to generalized dissatisfaction with shared parking and congestion.

Accordingly, even under the liberal standard of Leon v Martinez, the fifth cause of action fails to state a claim and is DISMISSED pursuant to CPLR § 3211 [a] [7], with prejudice.

V. Leave to Replead

Where the deficiencies in a complaint are substantive and not merely technical, leave to replead may be denied as futile. Starbucks cites SureFire Dividend Capture, LP v. Industrial & Commercial Bank of China Fin. Servs. LLC, 216 AD3d 584 1st Dept 2023], in which the First Department affirmed dismissal with prejudice where amendment would not cure the inherent legal defects. Similarly, Brooks and Yiwen Zhang v Pacific Park 550 Vanderbilt LLC, 2018 NY Misc LEXIS 3554 [Sup Ct Kings County 2018] deny leave to amend where the proposed amendments could not salvage the claims.

Here, Plaintiff's claims against Starbucks are not merely inartfully drafted; they collide head-on with the documentary record (reciprocal easement and non-exclusive parking rights), with the statutory allocation of enforcement authority over certificates of occupancy (DOB), and with well-settled requirements for tortious interference and GBL § 349 claims. No re-pleading could convert Starbucks’ contractually authorized use of shared easement areas into trespass, nor transmute Starbucks’ drive-through signage into a materially misleading consumer communication about Plaintiff's parking rights.

Accordingly, dismissal is with prejudice.

VI. Conclusion and Decretal Paragraphs

Upon the foregoing papers and for the reasons set forth above, it is

ORDERED that the motion of defendant Starbucks Corporation d/b/a Starbucks Coffee Company to dismiss the Complaint pursuant to CPLR § 3211 [a] [1], CPLR § 3211 [a] [3], and CPLR § 3211 [a] [7] is GRANTED in its entirety; and it is further

ORDERED that all causes of action asserted against Starbucks Corporation are dismissed with prejudice; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly in favor of defendant Starbucks Corporation d/b/a Starbucks Coffee Company and against Plaintiff; and it is further

ORDERED that the action shall continue, if at all, solely as against the remaining defendant #1 JRL LLC, and it is further

ORDERED that the matter is adjourned for a status conference on January 20, 2026, at 9:30 AM, at the Courthouse located at 26 Central Avenue, Courtroom 330, Staten Island, NY.

Ronald Castorina, Jr., J.