Hello Beautiful Salon, Inc. v. Dimoplon

2024 NY Slip Op 31702(U)

• Court: New York Supreme Court, Kings County
• Decided: May 14, 2024
• Status: Unpublished

Opinion

Hello Beautiful Salon, Inc. v Dimoplon 2024 NY Slip Op 31702(U) May 14, 2024 Supreme Court, Kings County Docket Number: Index No. 516031/2023 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 05/14/2024 02:49 PM INDEX NO. 516031/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 05/14/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OE KINGS : CIVIL TERM: COMMERCIAL 8 - - -- -· -·- -- -- -- -·--- --- -· -·- .- - - - - -·- - . . . -·- -- -x HELLO BEAUTIFUL SALON, INC., Plaintiff; Decision and order

- against - Index N6. 516031/2023

KRISTINA DIMOPI..ON, JUSTIN GOSLIN, and LIVE BY THE SWORD, Defendants, May 14, 2024 - .- .. ·---- ... ----.-·---.--·----·. -· - : - - - - - - - - - - - . X PRESENT: HON:. LEON RUCHELSMAN Motion Seq. #1 & #2

The defendants have moved pursuant to CPLR §3211 seeking to

dismiss the complaint for the failure to allege any causes of

action. The plaintiff has cross-moved seeking to amend the

complaint. The motions have be.en .opposed respectively. Papers

were submitted by the parties and after reviewing all the

arguments this court now makes the following determination.

According to the complaint Hello Beautiful is~ hair salon

that employed the defendants Kristin Dirhoplon and Justin Goslin.

The complaint alleges the two defendants left the plaintiff's

employment and opened tll.eir own nair salon and utilized the

plaintiff's C16ver point of sale account and utilized the

plaintiff's customer list and other private information. The

plaintiff instituted this action and has alleged causes of action

for fraud, trespass to chatt~ls, tortibui interferenc~ with business .reiati.ons, violations. 0£ Gen1:;:ral Business Law §349 and. the breach of the .employment contract. As noted the defendants have now moved seeking to dismiss the complaint on the grounds it

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fails to allege any causes of action. The plaintiff has cross-

moved seeking to amend the complaint to cure some of those

deficiencies.

Conclusions of Law Iri 2012 CPLR 3025 (b) was amended arid states that "any motion

to amend or supplement pleadings shall be accompanied by the

proposed ameri:ded or supplemEocnti:l.l pleading clearly showing the

changes or additions to be made to the pleadingu (id)" The

practice commentaries accompanying the new rule state that "this

new provision does no:t prescribe exactly how the changes are to

be shown, but arty document marked with "track changesr" or some

similar program, will likely suffice. Clarity should be the

touchstone for- any disputes on this front, and there are many

w_ays in which the movant can achieve this legislative goal"

{Patrick M. Connors, McKinney's Cons Law of NY, Book 7B, CPLR

Practice Commentaries C3O25:9A [2012]). Thus, while there are

courts that have required such track changes (Bernard-Moses v.

Chick-Fil-A, Inc., 81 Misc 3d. 1241[AJ, 203- NYS3d 865 [Suprertt_e

Court Kings County 2024 J ) others have held their absence cloes not

mean the request for ari amendment should be denied.(L. Raphale

NYC Cl Corp., v. Solow Building Company LLC, 2019 WL 3765349

[Supr.erne Court New York C:ounty 2Q.19.] reilersed on other g.:i:-ounds,

20.6 A.b3d .590, 172 NYS3d 10 [Pt Dept.~ 2022]). However, there

can be no disput~ that the plain meaning of the statute require.s

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such changes to be apparent so that other parties and the c91,trt

can easily identify them. Theref:ore, "the lack of such a clear

showing leaves the noh--:movihg parties no choice but to conduct a

line-by-line comparison between the original 9 nd the allegedly

amended pleadings. Such expenditure of time arid .effort shifts the

burdE:n fr9rn the Plaintiff to the non"'"'movants to locate and object

to any propos~d changes rather than where it shoµld be on movant

to justify its changes. Further, the lack of clearly identified

changes places an: undue burden on courtsr, (see, Gornis v. summit

Glory LLCr 78 Misc3d 1226 (A), 186 NYS3d 915 [Supreme Court Bronx

County 2023]). The submission of art amended complaint ih reply

is improper. The fully proposed amended complaint was required

to be submitted in support of its motion in chief. New arguments

cannot be rriade in reply. Thereforer the motion seeking to amend

the complaint is denied without prejudice.

It is well settled that upon a motion to dismiss the court must determine, accepting the allegations of the complaint as true, whethe:r: the party can succeed upon any reasonable view of

those facts (Perez v. Y & M Transportation Corporation, 219 AD3d

1449, 196 NYS3d 145 [2d Dept., 2023]). Further, all the allegations in the complaint are deemed true and all reasonable

inferences may be drawn i.n favor of the plaintif.:l: (Archival Inc.,. v. 177 Realty Corp., 220AD3d 909, 198.NYS2d567 [2d Dept.,

202,3j). Whether tl1e complaint will late'r survive .a motion for

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su:rtunary Judgment, or whether the plaintiff will ultimately be

able to prove its claims; of course, plays no part in the

determination of a pre-discovery CPLR §:3211 motion to dismiss

(see, tam v. Weiss, 219 AD3c1 713, 195 NYS3d 488 [2d Dept.,

2023]) •

It is well settled that to succeed upon a claim of fraud it

must be demonstrated there was a material misrepresentation of

fact, made with knowledge of the falsity, the intent to induce

reliance, reliance upon the misrepresentation and darnages

(Cruciata v. O'Donnell & Mclaughlin, Esqs,149 A03d 1034, 53 NYS3d

32 8 [2d Dept., 2017 J) . Further, to succeed upon a claim of

fraudulent concealment it must be demonstrated that in addition

to the above requirements there was a fiduciary or confidential

relationship which would impose a dtity upon the defendant to

disclose material informatiqn (Mitschele v. Schultz,36 AD3d249,

826 NYS2d 14 [Pt Dept., 2006], Wallkill Medical Development LLC

v. Catskill Orthopaedics P.C., 178 AD3d 987, 115 NYS3d 67 [2d Dept., 20i9]) . Moreover, even absent a fiduciary relationship a.

duty to disclose may arise under the 'special facts' doctrine

where one party maintains superior knowledge of essential facts

as to render the entire transaction inherently unfair absent the

disclos_ure (Jana L. v. West 129 th Street Realty ·corp., 22 '.A:D3d 224, 802 NYS2d 132 [i st Dept., 200·5]). As with all .fraud claim·s.,

these el~men:ts must each t>e supported by factual allegations.

4.

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containing details constituting the wrong alleged (see, JPMorgan

Chase Bank, N.A. v. Hall, 122 AD3d 576, 996 NYS2d 309 [2d Dept.,

2014]).

Thus, pursuant to CPLR §3016(b) to plead fraudf the

complaint :tnust "sufficiently detail the alleged coriduct" and

contain fact that "are sufficient to permit a reasonable

inference ,of the alleged conduct" (Pludeman v. Northern Leasing Systems Inc., 10 NY3d 486, 860 NYS2d 422 [2010]). In the

complaint in this case there are absolutely no facts supporting

allegations of fraud. The allegations merely contain conclusions

that fraud was co:tnmitted without explaining, with the detail

required, how such fraud occurred. Thus, a complaint that

alleges fraud "absent specific and detailed allegations

establishing a material misrepresentation of fact, knowledge of

falsity or reckless disregard for the truth, scienter,

justifiable reliance, arid damages proximately caused thereby, is

insufficient to state a cause of action for fraud" (Old Republic

National Title Insurance Company v. Cardinal Abstract Corp,,· 14

AD3d f57 8, 7 90 NYS2d 143 [2d Dept., 2005]) .

In this case the complaint does riot allege any

misrepresentations made by the defendants to the plaintiff at

all. The complaint merely alleges the defendants utilized

plaintiff's in.formatibn. Even if that is true chat does not

constitute frauo. at alL Therefpre, the rnotion seeking to

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dismiss the first cause .of action is granted.

Next, "to establish .·<:l. trespass to chattels, the Plaintiff

must plead an intentional and physical interference with the use

and enjoyment o.f personal property in the Plaintiff's possession,

without justification or C6r1sent" (AGT Crunch Acquisition LLC v.

Bally Total Fitness Corporation, [Supreme Court New York County

2008 J) • Further, \'an essential element in plead1ng trespass to chattel is harm to the condition, quality or material value of

the chattels at issue" ("J. Doe.No. 1" v. CBS·Broadcasting Ihc.,

2 4 A:D3d 215, 8 0 6 NYS2d 38 [ pt Dept. , 2005] J • Moreover, "as

applied to the online context, trespass does not encornpass ... an

elect.:tohic communication that neither damages the recipient

computer system nor impairs its functioning" (see, Mount v ..

PulSePoint, Inc., 2016 WL 5080131 [S.D,N.Y. 2016]). In this case

there are only allegations the defendant's utilized the

plaintiff's private information. That does not support a claim

for trespass to Chattels and this cause of action is likewise dismissed.

Next; in order to state an actionable clairt1. for tortious

interference with business relations, a plaintiff must allege: (1) the existence of a business relation ·with a party; (2) that

the defendant, having knowledge-of such relationship,

intentionally interfered with it; (3) tha:t the de.feri.dant either

acted with the .. sole purpose of harming the pli:iintiff or by means.

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that were dishonest, unfair, or improper, and (4) a resulting injury to the plaintiff's business relationship (Island

Rehabilitative Services Corp. v. Maimonides Med. Ctr.; 19 Misc3d

1108A, 859 NYS2d 903 [Supreme Court New York county 2008]). Ih

this case the complaint does not allege any specific business

relationship with any third party that was affected by the

alleged cc.induct (see, Lesesne v. Lesesne, 292 AD2d 507; 740 NYS2d

352 [2d Dept., 2002]). Therefore, the motion seeking to dismiss

this cause of actiori is granted~

Next, it is well settled that to pursue a clairn based upon

General Bµsiness Law §34,9 the plaintiff must establish the

challenged act ·or p:r-actice was consumer oriehted, that it was

misleading in a material way and that the plaintiff suf fe.red harm

as a result of such practices (Stutman v. Chemical Bank, ,95 NY2d

24, 709 NYS2d 892 [2000]). There is no allegation that any Of

the alle'ged conduct was consumer oriehted. The harms alleged

only involve the plaintiff. Therefore, the motion seeking to

dismiss this claim is granted.

Lastly, it is well settled that to succeed upon a claim of

breach of contract the plaintiff must establish the existence of

a contract, the plaintiff's perfqrmance, the defendant's breach

and resulting damages (Harris v. Seward .Park Hous'ing Corp., 79 AD~d 425, 913 NYS2d 161 [ pt Dept'. ; 20l9] ) . Further, as

explained in .Gianelli v. RE/MAX of New York, 144 AD3d 861, 41

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NYS3d 273 [2d Dept., 2016], "a breach of contract cause of action

fails as a matter of law in the absence of any showing that a

specific provision of the contract was breached" (id). Tn this

case there is no provision of the contract that has been

ment,ioned and the court cannot evaluate whether any breach even

occurred. Therefore, the rtrotion seeking to dismiss this cause of p

action is granted.

Further, there are no claims asserted against defendant Live

by the Sword. Therefore, the motion seeking to dismiss the

entire complaint is dismissed withoµt prejudice,

So ordered.

ENTER:

DATED: May 14f 2024 Brooklyn N.Y. Hon. Leon Ruchelsman JSC

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