Hello Beautiful Salon, Inc. v. Dimoplon

2024 NY Slip Op 31702(U)

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

1 of 8

[* 1]

FILED: KINGS COUNTY CLERK 05/14/2024 02:49 PM INDEX NO. 516031/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 05/14/2024

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

2 of 8

[* 2]

FILED: KINGS COUNTY CLERK 05/14/2024 02:49 PM INDEX NO. 516031/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 05/14/2024

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

1

3 of 8

[* 3]

FILED: KINGS COUNTY CLERK 05/14/2024 02:49 PM INDEX NO. 516031/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 05/14/2024

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.

4 of 8

[* 4]

FILED: KINGS COUNTY CLERK 05/14/2024 02:49 PM INDEX NO. 516031/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 05/14/2024

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

5

5 of 8

[* 5]

FILED: KINGS COUNTY CLERK 05/14/2024 02:49 PM INDEX NO. 516031/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 05/14/2024

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.

6

6 of 8

[* 6]

FILED: KINGS COUNTY CLERK 05/14/2024 02:49 PM INDEX NO. 516031/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 05/14/2024

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

7

7 of 8

[* 7]

FILED: KINGS COUNTY CLERK 05/14/2024 02:49 PM INDEX NO. 516031/2023 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 05/14/2024

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

8

8 of 8

[* 8]