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Supreme Court, Appellate Division, First Department, New York.

Paul A GOSHEN, etc., Plaintiff-Appellant, v. The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, et al., Defendants-Respondents.

Sara M. DeFilippo, et al., Plaintiffs-Respondents, v. The Mutual Life Insurance Company of New York, Defendant-Appellant, MONY Life Insurance Company of America, Defendant.

Decided: August 09, 2001

SULLIVAN, P.J., ROSENBERGER, MAZZARELLI, BUCKLEY and FRIEDMAN, JJ. Barry A. Weprin, for Plaintiff-Appellant. Harvey Kurweil, for Defendants-Respondents. Barry A. Weprin, for Plaintiffs-Respondents. Harvey Kurzweil, for Defendant-Appellant.

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about August 21, 2000, which, inter alia, severed and dismissed the claim of Paul Goshen and substituted Sara M. DeFilippo and Stephen M. DePhilippo as named plaintiffs and class representatives, unanimously affirmed, without costs.   Order, same court and Justice, entered October 20, 2000, which denied defendants' motion to strike plaintiffs' demand for a jury trial, unanimously reversed, on the law, without costs, and the motion granted.

This class action was brought by a number of purchasers of defendants' “vanishing premium” life insurance policies, alleging that defendants violated General Business Law (GBL) § 349(h) by marketing these policies based upon knowingly unrealistic dividend projections.   This case was the companion appeal to Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330, 704 N.Y.S.2d 177, 725 N.E.2d 598, and a detailed recitation of the facts is set forth in that decision.   In Gaidon, the Court of Appeals determined that a question of fact was presented as to whether reasonable consumers would be misled in a material way by the Goshen defendants' actions, as contemplated by GBL § 349 (Gaidon, supra, at 345, 704 N.Y.S.2d 177, 725 N.E.2d 598), and it remanded Goshen “for further proceedings consistent with [the] opinion” (id. at 350, 704 N.Y.S.2d 177, 725 N.E.2d 598).   However, the court specifically stated that “the propriety of the class certification [in Goshen ] is not before us on this appeal” (id. at 341, n. 8, 704 N.Y.S.2d 177, 725 N.E.2d 598).

At issue in the first of these consolidated appeals is the narrow question of whether the claim brought by Paul Goshen, a Florida resident who bought his policy in Florida (from a Florida based insurance agent) was properly severed and dismissed after the case was remanded, on the ground that non-New York consumers who entered into transactions outside the State cannot bring actions pursuant to GBL § 349(h).   As to this issue, we affirm the motion court's determination that Mr. Goshen has failed to state a cause of action under GBL § 349, the New York Consumer Protection statute.

GBL § 349 prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in the state ․”, and under § 349(h) a private right of action may be brought by “any person who has been injured by reason of any violation of this section” (emphases supplied).   Applying this language, we recognize the settled rule of statutory interpretation, that unless expressly stated otherwise, “no legislation is presumed to be intended to operate outside the territorial jurisdiction of the state ․ enacting it” (73 Am.Jur.2d Statutes § 359 at 492;  see also, McKinney's Cons. Laws of N.Y., Book 1, Statutes § 149 at 305 [“every statute in general terms is construed as having no extraterritorial effect”];  see generally, Morgan v. Bisorni, 100 A.D.2d 956, 956-957, 475 N.Y.S.2d 98).

 In conformity with these general principles, courts have held that to maintain a private right of action under GBL § 349(h), a plaintiff must allege deceptive acts or practices which took place in New York State (Weaver v. Chrysler Corp., 172 F.R.D. 96, 100 [S.D.N.Y. 1997];  see, e.g., Weinberg v. Hertz, 116 A.D.2d 1, 499 N.Y.S.2d 693, affd. 69 N.Y.2d 979, 516 N.Y.S.2d 652, 509 N.E.2d 347 [certifying class of individuals who returned rented cars in New York State] ).

 Thus, here, as in Cole v. Equitable Life Assur. Socy. of the United States, 271 A.D.2d 271, 707 N.Y.S.2d 56, the protections of GBL § 349(h) are unavailable to Mr. Goshen, a Florida resident who purchased a “vanishing premium” insurance policy from a Florida insurance agent in Tampa, Florida (see, id., at 272, 707 N.Y.S.2d 56;  cf., Meachum v. Outdoor World Corp., 235 A.D.2d 462, 463, 652 N.Y.S.2d 749 [GBL § 349(h) claim viable where “defendants engaged in deceptive conduct in New York by mailing misleading literature to New York residents in an attempt to induce them to travel to the defendants' facilities in Pennsylvania”];  Morelli v. Weider Nutrition Group, Inc., 275 A.D.2d 607, 608, 712 N.Y.S.2d 551 [GBL § 349 “afford[s] consumers within [the state's] borders a statutory remedy for injuries caused by knowingly misleading and deceptive business practices”] ).

 However, we reverse the second order appealed, which denied defendants' motion to strike plaintiffs' demand for a jury trial.   The complaint in this action joined both legal and equitable claims, including, inter alia, rescission, restitution, reformation of the class members' insurance policies, and a class-wide mandatory injunction requiring defendants to keep plaintiffs' insurance policies in force without the payment of further premiums.   Because the relief sought is primarily equitable, not incidental to legal claims for money damages, plaintiffs have waived the right to a jury trial (see, Greenfield v. Philles Record, 243 A.D.2d 353, 674 N.Y.S.2d 1;  Daley v. Related Cos., 213 A.D.2d 205, 623 N.Y.S.2d 248).   Further, notwithstanding the fact that the Court of Appeals dismissed all of plaintiffs' claims except their allegation that defendants' violated GBL § 349, plaintiffs have nonetheless irrevocably waived their right to a jury trial (see, Zimmer-Masiello v. Zimmer, Inc., 164 A.D.2d 845, 846-47, 559 N.Y.S.2d 888 [“Once the right to a jury trial has been intentionally lost by joining legal and equitable claims, any subsequent dismissal, settlement, or withdrawal of the equitable claim(s) will not revive the right to trial by jury”] ).