Kraus v. Visa International Service Ass'n

304 A.D.2d 408, 756 N.Y.S.2d 853, 2003 N.Y. App. Div. LEXIS 4083

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 2003
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Herman Cahn, J.), entered June 3, 2002, bringing up for review an order, same court and Justice, entered May 29, 2002, which granted defendant’s motion pursuant to CPLR 3211 (a) (1) and (7), and dismissing the complaint, unanimously affirmed, with costs. Appeal from the order entered May 29, 2002, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

Plaintiffs General Business Law § 349 claims were properly dismissed in light of plaintiffs failure to allege deceptive conduct by defendant “likely to mislead a reasonable consumer acting reasonably under the circumstances” (Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 26 [1995]; see also Stutman v Chemical Bank, 95 NY2d 24, 29 [2000]).

Also properly dismissed for failure to state a cause of action were plaintiffs breach of contract claims since plaintiff failed to allege the breach of any particular contractual provision (Lebow v Kakalios, 156 AD2d 301 [1989]; Shields v School of Law, 77 AD2d 867, 868 [1980]). Moreover, even if the documents to which plaintiff refers could be considered a contract, defendant’s alleged activities would not constitute a breach of that contract.

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Nardelli, J.P., Williams, Friedman, Marlow and Gonzalez, JJ.