Consumer Alleges Deceit; Court Rules that Reasonable Consumers Account for the Ice

–by Erin Shea

Source: Galanis v. Starbucks Corporation, No. 16-C-4705, 2016 WL 6037962 (N.D. Ill. 2016) (all internal citations omitted).

Abstract:  The Northern District of Illinois concluded that a reasonable customer understands the term “fluid ounces” to indicate the volume of a container and not the contents.


Starbucks customer Steven Galanis was recently disappointed with his iced Starbucks beverage. Galanis’ disappointment rose to such a level that he filed a lawsuit, alleging that Starbucks deceives its customers by “misrepresenting the volume of its cold drinks because much of the volume is taken up by ice.” Galanis argued that Starbucks was deceiving the customer by advertising the size of its cups rather than the amount of liquid that a customer receives with the order of an iced beverage. For example, Starbucks advertises that an iced drink has twenty-four fluid ounces. Galanis believes that drink should have twenty-four fluid ounces of beverage before the ice is added.

Galanis filed suit in the Northern District of Illinois and argued that this misrepresentation constituted (1) breach of express warranty; (2) breach of implied warranty of merchantability; (3) negligent misrepresentation; (4) unjust enrichment; (5) fraud; (6) a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act; and (7) a violation of the Illinois Uniform Deceptive Trade Practices Act. In response, Starbucks filed a motion to dismiss for failure to state a claim.

In order to succeed on a cause of action under the Consumer Fraud Act, Galanis needed to prove that (1) Starbucks engaged in a deceptive act or practice; (2) Starbucks intended that consumers rely on the deception; (3) this deception involved trade or commerce; (4) the deception caused actual damage to the consumer; and (5) Starbucks’ deception proximately caused the damage to the consumer. A statement will be considered deceptive if it “creates a likelihood of deception,” and “misled a reasonable consumer,” in the totality of the circumstances. A court may dismiss a claim under this theory if the statement was not misleading as a matter of law.

The court sided with Starbucks and concluded that a reasonable consumers knows that the measurement of fluid ounces refers to volume, not content, and “if the consumer chooses an ‘iced’ drink, the reasonable consumer knows that the container (whatever its volume) will be filled with both solid ice and fluid beverage.” The court stated that the mere fact the volume of the drink is measured using a phrase that contains the word “fluid,” does not mean all the contents need to be fluid. A reasonable consumer would expect there to be ice in the iced drink.

The court supported its finding of reasonableness by relying in part on a recent California district court decision that stated, “children have figured out that including ice in a cold beverage decreases the amount of liquid they will receive.” The court noted that sellers do not normally list the fluid ounces available, and simply demonstrate by display the size choices available to the customer. The reasonable consumer understands that even though Starbucks displays its cups and lists the fluid ounces, the ounces indicate the volume of the container, not the contents of the container. The court finished by stating, “including ice, which of course is not fluid (as the parties ‘helpfully’ point out . . . ), in an iced drink does not make a menu listing the size of the drink in terms of ‘fluid ounces’ a deceptive statement.” Since all of Galanis’ claims required a misleading statement, and the court did not find that one existed, the court granted Starbucks’ motion to dismiss on all counts.

Survey: 2015 Contract Law

Survey of New York Contract law for 2014–2015.

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Mr. Aaron is a Partner with Arnold & Porter LLp; J.D., Syracuse University College of Law; B.S., Cornell University. Ms. Caterina is an Associate with Arnold & Porter LLP; J.D., Syracuse University College of Law, B.A. Bennington College.

NY Court of Appeals Grants Summary Judgment in Joint Venture Dispute

—by Shannon Crane

Littleton Constr. Ltd. v. Huber Constr., Inc., No. 96, 2016 N.Y. LEXIS 1688 (June 14, 2016).


In Littleton Construction Ltd. v. Huber Construction, Inc, plaintiff commenced a proceeding against defendants Huber Construction, Inc. (“Huber”) and Littleton/Huber Joint Venture (the “Joint Venture”) seeking a portion of the management fees collected by Huber as part of the payment for projects completed by the parties in connection with a joint venture. Huber Construction, Inc. (Huber) and Littleton/Huber Joint Venture (the joint venture) seek a portion of the management fee. 2016 N.Y. Slip Op.  04657, at 1–2. Defendants moved for summary judgment, and the motion relied upon the validity and interpretation of the party relationship governing documents. Id. at 2. The trial court partially granted defendants’ motion, leaving one claim seeking recovery of a portion of management fees. The Appellate Division dismissed the complaint in its entirety. Id.

The issue before the Court of Appeals was the parties’ dispute over which agreement governed the joint venture relationship. Pursuant to the motion for summary judgment, defendants met their evidentiary burden of establishing that the Operating Agreement was not executed by Huber, and was thus unenforceable. Id. The joint venture cannot be governed by the terms of an unenforceable document. Id. Because the terms of the Operating Agreement were not enforceable, the Court determined that the Memorandum of Understanding governed the relationship. Littleton Construction Ltd. 2016 N.Y. Slip Op.  04657, at 2 (N.Y. 2016). The Memorandum of Understanding plainly provided for a 9 percent management fee to Huber, which Huber was not required to share with the plaintiff. When a contract is complete, clear and unambiguous, it must be enforced according to its plain meaning; thus, defendants were entitled to summary judgment. Id.

To Challenge Governmental Action in Land Use Matters, No Need for Unique Injury

— by Moira Ferguson

Source: In re Sierra Club v. Village of Painted Post, No. 151 (N.Y. Nov. 19, 2015)

Abstract: To have standing to challenge governmental action in land use matters, a party must show it would suffer a “special injury.” An injury is special where it is direct and in some way different from that of the public at large. However, the possibility that more than one person may be harmed by the governmental action does not defeat standing.


The Village of Painted Post is situated at the intersection of the Cohocton, Tioga and Chemung Rivers. Below these rivers sits the Corning aquifer. In February of 2012, the Village entered into a sales agreement with a subsidiary of Shell Oil Co. The sales agreement provided for the sale of 314 million gallons of water from the Corning aquifer, to the Shell Oil Co. subsidiary. The Village also entered into a lease agreement with Wellsboro & Corning Railroad. This lease agreement allowed for the construction of a water transloading facility in the Village. Water from the aquifer would be withdrawn, loaded, and transported via train at this facility.

Following the formation of these two agreements, petitioners commenced a proceeding against the Village. Petitioners included The Sierra Club, People for a Healthy Environment, Inc., Coalition to Protect New York, and individual residents of the Village. Petitioners claimed by failing to take into consideration adverse environmental impacts of the agreements, the Village failed to comply with the State Environmental Quality Review Act (SEQRA). Due to this neglect, petitioners asked the court to preliminarily enjoin any effects of the agreements until the Village complied with SEQRA. In response, the Village moved to dismiss, insisting petitioners lacked standing to bring a claim.

In Society of Plastics Indus. v. Cty of Suffolk, the Court set forth a framework for deciding when parties have standing to challenge governmental action in land use matters generally, and under SEQRA specifically. The Court decided that for standing purposes, the plaintiff must have a “special injury.” To be special, the injury must be direct, and different from that of the injury suffered by the public at large.1

The Supreme Court applied this rationale to each of the petitioners in the present case. The court found the organizations only alleged indirect, generalized environmental injuries that the public at large would suffer. These did not equate to the special injuries needed to confer standing. However, the Supreme Court found one individual petitioner, John Marvin, did suffer direct harm, distinct from that suffered by the general public. This harm equated to the special injury required to confer standing to challenge a governmental action in land use matters.

Marvin was a longtime resident of the Village, and lived less than a block for the transloading facility. He stated that when the water trains began running, the noises were so loud that they kept him and his wife awake at night. Marvin worried the noises would degrade not only the value of his home, but the quality of his life.

The Appellate Division also applied the standing framework set out in Society of Plastics, but rendered an opposite holding. The Appellate Division focused on the fact that Marvin complained about the noise from the trains, but did not address the noise from the transloading facility. The court acknowledged that many other Village residents lived along the train tracks, were subject to the injurious noise of the trains, and therefore suffered the same injury as Marvin. For the Appellate Division, because many residents of the Village suffered the same injury as Marvin, Marvin’s injury was not direct or different from that of the public at large. Therefore, he did not establish the special injury required to confer standing.

The Court of Appeals found the Appellate Division applied an overly restrictive analysis of the requirement to show standing. The Court reiterated that to have standing to challenge a governmental action in land use matters generally, the petitioner must suffer a special injury, meaning the injury is direct and is different from that of the public at large. However, to be special, the injury need not be unique.

Here, Marvin did not assert the increased train noise would cause him an indirect, collateral harm, congruent to the burden felt by the public at large. Instead, Marvin alleged a particularized harm that may also be inflicted upon other residents of the Village who live near the train tracts. Standing is not to be denied simply because many people suffer the same injuries.

The Court found the Appellate Division’s restrictive analysis of standing has detrimental effects on the judiciary system. Specifically, to deny standing to persons who are injured, simply because others suffer the same injury, insulates the most injurious and widespread government action from judicial review.

Although other Village citizens residing along the tracks could hear the trains, for Marvin, the injurious noise was still direct and different from that of the public at large. Accordingly, the noise equated to a special injury, sufficient to confer standing to challenge the Village’s two agreements, the governmental action that lead to Marvin’s injuries.

Capretto v. City of Buffalo

This appeal arises from an action in which plaintiff sought damages for injuries she sustained when she tripped and fell as a result of broken concrete located in the driveway portion of a sidewalk. The issue on appeal is which party had a duty to correct the large area of broken concrete that constituted a dangerous and long-standing condition. The driveway is located outside of a baseball stadium. The property is leased to Bison Baseball (“Bison”) from the City of Buffalo. Immediately next to the driveway is a parking garage owned by Seneca One Realty LLC (“Seneca”) whom contracted with Allpro Parking (“Allpro”) to service and operate the parking garage. In the original action, the Supreme Court of Erie County, granted Seneca and Allpro’s motions for summary judgment, and granted in part Bison’s summary judgment. The plaintiff and Bison both appealed the order.

The court rejected Bison’s contentions about the negligence claims against them, holding that although generally liability for dangerous and defective conditions to public sidewalks is placed on municipalities, there are circumstances that merit exceptions. Some of the exceptions are: (1) when the sidewalk is constructed in a special manner for the benefit of the abutting owner; (2) where the abutting landowner negligently constructed or repaired the sidewalk; and (3) where a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty.

In this case, the dangerous condition existed on the portion of the sidewalk that abuts the property owned by Seneca, but is also located in the apron of the driveway that provides access to the property leased by the Bison defendants. The court concluded that the Bison defendants failed to establish as a matter of law that they lacked access to and the ability to control special use of the driveway and did not create the defect by any alleged special use. Rather, based on the evidence it was plausible to conclude that the driveway was constructed for the exclusive use and benefit of the Bison defendants’ leased property. The evidence highlighted that the only places that could be accessed by the driveway were the stadium and the surface parking lot, both of which were located on the property leased by Bison.

The court also concluded that the lower court properly dismissed the common-law negligence claims against Seneca and Allpro but erred in dismissing those claims against them that were based on The Charter of the City of Buffalo (“the charter”). The court agreed that although Allpro employees may have barricaded the area of the dangerous condition on occasion, such conduct did not create a common law duty of care. The court disagreed with Seneca and Allpro’s contention that they did not have a duty under the charter which explicitly charged all owners or occupants abutting a public street with the duty to maintain and repair the sidewalk. It held that both Seneca and Allpro as the abutting owner and occupant, respectively had a duty under the charter, despite the dangerous condition being situated on the driveway portion of the sidewalk.  Lastly, the court also affirmed the dismissal of Bison defendants’ cross claim for contractual indemnification as it believed that the acts or omissions at issue regarding the property were covered by the lease.

1 N.Y.S.3d 615 (4th Dep’t 2015)

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In re JP Morgan Chase Bank, N.A.

This appeal addresses a motion to dismiss based on a breach of fiduciary duty claim. In 1983, Lucy Gair Gill’s will established a trust for the benefit of her daughter, Mary Gill Roby and her grandchildren and great-grandchildren. The trust terminated upon Mary Gill Roby’s death. Before her death, she exercised her power of appointment to have the trust assets distributed to her three children and two grandchildren. Three of the beneficiaries objected to the accounting and brought a claim for breach of fiduciary duty against the trustee JPMorgan Chase. The objectants argued that the “petitioner’s refusal to consider investment in nonproprietary funds was a breach of fiduciary duty that caused objectants “great loss.””

The Monroe County Surrogate’s Court granted JPMorgan Chase Bank’s motion to dismiss and held that the defense of laches barred the objections. The Surrogate further held that the open repudiation rule did not apply to the defense of laches. The Fourth Department affirmed the motion to dismiss on other grounds. The court expressly found that the open repudiation rule applies to the defense of laches. The court concluded, “that petitioner’s refusal to consider investing trust assets in nonproprietary funds in accordance with the desires of the beneficiaries did not constitute an open repudiation of petitioner’s role as fiduciary.”

The court instead affirmed the motion to dismiss for a failure to state a claim. The court rejected each objections in the objectants’ breach of fiduciary duty claim. First the court looked at the claim that JPMorgan Chase breached its fiduciary duty by not investing in nonproprietary funds after the beneficiaries asked. On that objection it found that the Prudent Investor Act allows for trustees to invest in proprietary funds. Furthermore, the court found that an underperforming investment alone is insufficient to meet the standard for breach of fiduciary duty. The court reiterated that the test is prudence and not performance. Here, the objection was insufficient to support the breach claim.

The court went on to reject the objectors’ objection based on JPMorgan Chase not considering tax consequences. On this objection, it found that JPMorgan Chase did consider the tax consequences and communicated the investment strategy to the objectants in letters. The court also rejected the objections based on failure to communicate and failure to advise beneficiaries on changes in the law. The court found on those objections that that “the record supports the conclusion that the beneficiaries merely disagreed with the strategy as properly communicated by petitioner.” Finally the court found that there was a failure to state a claim the creation of a litigation reserve.

996 N.Y.S.2d 816 (4th Dep’t 2014)

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Nesmith v. Allstate

In this case, the Court of Appeals interpreted a “noncumulation clause” where members of different families were successively exposed to lead paint in the same apartment. Just as the Court similarly found in Hiraldo v. Allstate Ins. Co., the Court affirmed the Appellate Division’s ruling and held that the insurer’s maximum total liability is only one policy limit, even if the exposure happened to the children of different tenants during different tenancies.

Allstate Insurance Company issued a policy of liability insurance to the landlord of a two-family house in Rochester in September 1991. Within the policy, there was a “noncumulation clause” that stated there would be a limit of $500,000 in total liability, and “[a]ll bodily injury and property damage resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss.” This policy was renewed annually in September 1992 and September 1993.

Felicia Young and her children lived in one of the two apartments in the house, and in July 1993, the Department of Health notified the landlord of the two-family house that one of Young’s children had an elevated blood lead level and that several areas in the apartment were in violation of State regulations governing lead paint. In August 1993, the Department notified the landlord that violations were corrected.

A month later, the Young’s moved out and Lorenzo Patterson, Sr. and Qyashitee Davis moved in to the apartment with their children. Once again, a child was found to have an elevated blood lead level and the Department of Health notified the landlord.

Nesmith brought this present action against Allstate for a declaratory judgment, claiming that a separate $500,00 limit applied to each family’s claim and that her grandchildren should receive an additional $350,000. While the New York Supreme Court granted the declaration, the Appellate Division reversed and held that the injury to Young’s children and Nesmith’s grandchildren resulted from “continuous or repeated exposure to the same general conditions,” so there was only one “accidental loss” within the meaning of the policy. This Court affirmed the Appellate Division’s ruling.

Nesmith argued that the injuries to her grandchild and Young’s child were separate losses since they did not result “from continuous or repeated exposure to the same general conditions.” The Court rejected this argument because while the children were not exposed to the exact same conditions, they were subject to the “general conditions.” Also, the record did not show that there were a new conditions since the landlord supposedly fixed the situation after being notified about Young’s child. The Court concluded that the landlord’s efforts were not completely successful, which caused the same general conditions to exist. Since the different children were exposed to the same general conditions, their injuries were part of a single “accidental loss” and only one policy limit is available to the two families.

24 N.Y.3d 520 (N.Y. 2014)

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Kimso v Ghandi

This appeal addresses a party’s ability to amend a pleading following trial and the full presentation of proof by both parties. Counterclaim plaintiff, Mahesh Gandhi and his two associates formed and held equal one-third interests in three corporations. The corporations were given a twenty million dollar loan from the U.S. Dept. of Housing and Urban Development (“HUD”), nine million dollars of that loan was loaned to the three associates as a shareholder loan—each associate made regular interest payments on that loan. Gandhi was removed as the corporations’ manager due to suspected misappropriation of funds. Gandhi filed a state action seeking to compel arbitration and the corporations filed a federal claim alleging multiple counts. Eventually, the parties reached a Settlement Agreement (“Agreement”) agreeing to end all actions and Gandhi sold his one-third interest, but no provision explicitly rid of Gandhi’s shareholder loan obligation.

The corporations stopped making payments to Gandhi after making twenty-three monthly payments during which Gandhi did not pay shareholder loan payments. The corporations filed an action seeking declaratory judgment to “offset the remaining amount they owed Gandhi under the Settlement Agreement against the money Gandhi owed the corporations on the shareholder loan notes.” Litigation continued, but both parties’ amended their pleadings. In the corporations’ amendment, they admitted they were “’joint and severally liable for the amounts due’. . .and ‘if Plaintiffs fail to make the full payments to Defendant as specified under Settlement Agreement, Defendant may allege that Plaintiffs are in default of the Settlement Agreement and that Defendant would be entitled to all his remedies.’” One month prior to trial, corporations filed motions to preclude Gandhi from presenting evidence/claiming payments due to him. The trial court deferred, but at trial allowed evidence about the agreement and back payments owed. Gandhi moved to conform the pleadings to align to the proof at trial, seeking to assert a counterclaim. The supreme court granted his motion, the corporations appealed and the appellate division reversed the trial court’s ruling—finding, the late amendment prejudiced the corporations. Gandhi appealed.

Here, the Court found that pursuant to N.Y. C.P.L.R. 3025, a party is permitted to amend a pleading “‘at any time by leave of court . . . before or after judgment to conform [the pleading] to the evidence.’” Furthermore, the Court found that where there is no prejudice to the party opposing the amendment, the court should grant leave to amend. The court has great latitude in exercising discretion over applications to amend pleadings and may only be reversed where there is an abuse of discretion. Here, the court found the appellate division did abuse its discretion because there was no prejudice to the corporations that would support a denial of Gandhi’s request to amend. The Court found that because the corporations had stated in their amended complaint that the sum of money they owed should be reduced by the money Gandhi owed them—explicitly addressing potential back payments—they were not permitted to allege prejudice from Gandhi’s demand for payments due to him. This is because “facts admitted in a party’s pleadings constitute . . .admission, and are conclusive . . .” Furthermore, the Court found that the corporations had elicited evidence that was the basis of Gandhi’s claim.

The Court reversed and remitted the case to the appellate division.

998 N.Y.S.2d 740 (N.Y. 2014)

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Town of Amherst v. Weiss

This appeal addresses the tolling of the statute of limitations in a legal malpractice action under the continuous representation doctrine. This appeal also considers whether an attorney who was hired by the Defendant-attorney to assist in the matter leading to the alleged malpractice had sufficient privity of contract with the client to be amenable to suit for legal malpractice as well. The Plaintiff, the Town of Amherst (the “Town”), hired the Defendant-attorney, Weiss, to investigate bringing disciplinary charges against one of the Town’s employees. Weiss then hired Gladl (together, “Defendants”), another attorney, to assist in bringing the charges. The two attorneys did work for the Town, including drafting the charges against the employee and presenting evidence on behalf of the Town at a disciplinary hearing before the Town Board. The hearing resulted in the termination of the employee, and the Defendants drafted the Town Board’s resolution to terminate the employee.

The employee challenged the termination, alleging that the Town Board had not properly appointed the hearing officer. The resolution and the first hearing were annulled, and a second hearing was required. The Town again retained the Defendants to represent the Town in the second hearing in order to, as stated by the court, “correct the legal error resulting in the need to nullify the first hearing and initial . . . terminat[ion of] the employee.” Town of Amherst v. Weiss, 120 A.D.3d 1550, 993 N.Y.S.2d 396, 399 (4th Dep’t. 2013). The Defendants prosecuted the employee at the second hearing and drafted another resolution. The employee challenged the second termination as well, and the Town again retained the Defendants to represent the Town and defend its decision to terminate the employee in a proceeding the Town expected the employee to initiate.

The Town sued the Defendants to recover the costs and expenses relating to the first annulled hearing, alleging that the Defendants were negligent in not advising the Town regarding proper appointment of the hearing officer. Defendant Weiss moved for summary judgment to dismiss the complaint, arguing that the action was time-barred by the three year statute of limitations for legal malpractice. Defendant Gladl moved to dismiss for the same reason, and also argued that he did not have sufficient privity of contract with the Town to be amenable to suit for legal malpractice. The Supreme Court granted Defendants’ motions for summary judgment. The Town appealed, and the Appellate Division, Fourth Department, reversed, holding that triable issues of fact existed as to whether the statute of limitations was tolled by continuing representation of the Town by the Defendants.

The court held that the Defendants’ doing work for the Town relating to the second hearing and resolution raised triable issues of fact as to whether that representation “‘pertain[ed] specifically to the matter in which [Defendants] committed the alleged malpractice[,]’” and therefore whether there existed continuous representation, tolling the statute of limitations. Weiss, 993 N.Y.S.3d at 399 (quoting Shumsky v. Eisenstein, 726 N.Y.S.2d 365, 369 (2001)). Had representation relating to the initial matter ceased after the first hearing, the statute of limitations would have run since the alleged malpractice was committed on the date of the improper first hearing. However, the court held that it could not say, as a matter of law, that the Defendants’ subsequent acts were not so interrelated to the initial matter as to constitute continuing and interconnected representation related to terminating the employee. Therefore, triable issues of fact existed as to whether the separate retainer agreements pertained to separate and distinct matters, or whether they pertained to the ongoing initial matter. Since questions existed on the issue, the court held that summary judgment was improper.

The court also held that the Town submitted enough evidence to raise a triable issue of fact as to whether there was actual privity of contract (or a relationship close enough to actual privity) between Gladl and the town to make Gladl amenable to suit, and that summary judgment on that ground was also improper.

993 N.Y.S.2d 396 (4th Dep’t. 2014)

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Val Tech Holdings, Inc. v. Wilson Manifolds, Inc.

This appeal addresses damages recoverable under a cross claim for breach of contract. The plaintiff, Val Tech Holdings, contracted with the defendant, Wilson Manifolds, to fabricate plastic injection molds for the production of specialty intake manifold parts to be sold by the defendant to retail customers. When plaintiff commenced an action seeking damages for breach of contract in the Supreme Court of Monroe County, the defendant responded with counterclaims of breach of contract seeking compensatory damages for loss of profits as well as punitive damages. Plaintiff then moved for partial summary judgment dismissing the defendant’s counterclaims. and defendant made a cross motion for leave to serve a second amended answer containing counterclaims breach of implied covenant of good faith and fair deal as well as fraud. In response, the court issued an order denying the plaintiff’s motion and granting the defendant’s cross motion.

Here, the court held that consequential damages for lost profits are recoverable if, at the time of contracting, the loss of profits that would be incurred from a breach are foreseeable and probable. The court rejected plaintiff’s contention that lost profits must be included as a recovery in the contract at time of creation and instead used what it called the “common sense rule” to determine what the parties would have concluded had they considered the subject of damages. Using that rule the court found that plaintiff failed to meet its initial burden of establishing as a matter of law that lost profits were not within the contemplation of the parties at the time the contract was made. The key uncontested fact that the court relied upon was plaintiff’s knowledge of defendant’s intent to use the molds for immediate production and resale of specialty automotive parts.

However, the court did agree with plaintiff that the defendant’s demand for punitive damages was unsupported by allegations and that the lower court erred in denying that part of plaintiff’s motion to strike. The court found that nothing in the allegations satisfied the requirement of egregious conduct directed at the public in general. Furthermore, the court found that defendant’s proposed counterclaim for breach of the implied covenant of good faith and fair dealings was duplicative as it could not exist by itself absent the contract. Therefore, the court held that that counterclaim should have been denied on the ground that it was palpably insufficient on its face. Importantly, the court held that the second proposed counterclaim for fraud properly alleges wrongful conduct and injurious consequences independent of those underlying the breach of contract claim and was therefore properly allowed. Therefore, the court unanimously modified the lower court’s order so as to grant the plaintiff’s motion to strike defendant’s demand for punitive damages but to deny the part of defendant’s cross motion seeking leave to serve a second amended answer adding a counterclaim for breach of the implied covenant of good faith and fair dealing. As modified the lower courts order was affirmed without costs.

990 N.Y.S.2d 379 (4th Dep’t. 2014)

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