Schlessinger v. Valspar Corp.

991 N.E.2d 190, 21 N.Y.3d 166
CourtNew York Court of Appeals
DecidedMay 30, 2013
StatusPublished
Cited by23 cases

This text of 991 N.E.2d 190 (Schlessinger v. Valspar Corp.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schlessinger v. Valspar Corp., 991 N.E.2d 190, 21 N.Y.3d 166 (N.Y. 2013).

Opinions

OPINION OF THE COURT

Read, J.

The United States Court of Appeals for the Second Circuit has asked us to resolve two questions regarding General Business Law § 395-a, which (with certain exceptions) forbids the [169]*169termination before expiration of any “maintenance agreement covering parts and/or service” (General Business Law § 395-a [2]). We hold that General Business Law § 395-a does not make contract clauses that contradict its terms null and void; and that violation of section 395-a alone does not give rise to a cause of action under General Business Law § 349.

I.

Plaintiffs Lori Schlessinger and Brenda Pianko purchased furniture from the Fortunoff Department Store. Each of them also bought from Fortunoff, along with the furniture, the “Guardsman Elite 5 Year Furniture Protection Plan” (the Plan). The Plan is a contract in which defendant Valspar Corporation, through its Guardsman business unit, agreed that, if the furniture became stained or damaged during the contract period, it would “perform one or more” of a number of services— ranging from advice on stain removal to replacement of the furniture—or would arrange a store credit or offer a financial settlement. The Plan contains what plaintiffs call the “store closure provision,” which stipulates that

“[i]f the particular store location where you originally purchased your furniture . . . has closed, no longer carries Guardsman as a supplier, changed ownership, or has stopped selling new furniture since your purchase, Guardsman will give you a refund of the original purchase price of this Protection Plan.”

General Business Law § 395-a (2) says that, with exceptions not applicable here, “[n]o maintenance agreement covering parts and/or service shall be terminated at the election of the party providing such parts and/or service during the term of the agreement.” Plaintiffs claim, and we assume for present purposes (as did the Second Circuit), that the store closure provision violates section 395-a (2).

Fortunoff went into bankruptcy, and the store where plaintiffs bought their furniture closed. Pianko made a claim under the Plan for unspecified damage to her furniture (a table). Based on the store closure provision, Valspar tendered Pianko a full refund of the payment she made for the Plan ($100 in her case). Schlessinger does not allege that her furniture has been stained or damaged, or that she has made any claim under the Plan.

Plaintiffs brought a diversity action against Valspar in the United States District Court for the Eastern District of New [170]*170York in which they asserted two causes of action—one for breach of contract under General Business Law § 395-a and one for damages under General Business Law § 349. Plaintiffs also brought suit on behalf of two putative classes of individuals with New York addresses: those who purchased or will purchase a service contract and those whose claims were resolved by payment of a full refund of the Plan’s purchase price from June 1, 2004 until judgment.

Plaintiffs allege that section 395-a renders the store closure provision “ineffective and not a part of the agreement”; consequently, by denying claims based on this provision, Valspar breached its contracts (i.e., the Plan) with plaintiffs. Further, they contend, Valspar engaged in “deceptive practices” as defined by section 349 by selling maintenance agreements containing the store closure provision. Plaintiffs seek a declaration that the store closure provision is not part of the contract; an injunction against its enforcement; an order requiring the reprocessing of all claims denied because of the store closure provision; statutory damages of $50 for each individual who purchased the Plan and has not made a claim worth $50 or more; and attorney’s fees, litigation expenses and costs.

The District Court Judge dismissed the complaint (see Schlessinger v Valspar Corp., 817 F Supp 2d 100 [ED NY 2011]). Relying principally on our decision in Kerusa Co. LLC v W10Z/ 515 Real Estate Ltd. Partnership (12 NY3d 236 [2009]), he concluded that a breach-of-contract claim may not arise solely as a result of conduct prohibited by General Business Law § 395-a (here, the inclusion of the store closure provision in the Plan); and that a claim under General Business Law § 349 may not be premised solely on violation of General Business Law § 395-a.

Plaintiffs appealed to the Second Circuit, which certified to us the following questions:

“1. May parties seek to have contractual provisions that run contrary to General Business Law § 395-a declared void as against public policy?
“2. May plaintiffs bring suit pursuant to § 349 on the theoiy that defendants deceived them by including a contractual provision that violates § 395-a and later enforcing this agreement?” (Schlessinger v Valspar Corp., 686 F3d 81, 89 [2d Cir 2012]).

We accepted the certified questions (19 NY3d 992 [2012]), which we now answer in the negative.

[171]*171II.

The first certified question is based on plaintiffs’ cause of action for breach of contract, which, as the Second Circuit interpreted it, is asserted only by Pianko. Valspar concededly acted in conformity with its express contractual obligations, carrying out one of the alternatives permitted under the Plan’s service procedures—i.e., it tendered Pianko a full refund of the original purchase price. As a result, Pianko can only succeed on her breach-of-contract claim if General Business Law § 395-a renders the store closure provision null and void, which would remove a refund as an option under the Plan and cast Valspar into breach.

Unlike certain other provisions in the General Business Law, there is no express or implied private right of action to enforce section 395-a. Instead, the legislature chose to assign enforcement exclusively to government officials.

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Bluebook (online)
991 N.E.2d 190, 21 N.Y.3d 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schlessinger-v-valspar-corp-ny-2013.