its favor, the Court finds that Designers has shown that it has
sufficiently pleaded a first cause of action for breach of
contract as well as breach of the implied covenants of good
faith and fair dealing. For these reasons, the Court denies
Mohawk's Rule 12(b)(6) motion with regard to the plaintiffs
first cause of action.
B. As to the Second Cause of Action
The Court notes that the second cause of action is identical
to the first in every respect except for the relief requested.
In its first cause of action, Designers requests "actual
monetary damage along with incidental and consequential
damages;" and it requests injunctive relief in its second cause
of action. Although the plaintiff has separately entitled a
"second cause of action," it actually is a request for
additional relief based on the facts set forth in the first
cause of action. For the sake of clarity, the Court will
incorporate Designers' request for injunctive relief into the
first cause of action. Because no real separate "second cause of
action" exists, it is dismissed.
C. As to the Third Cause of Action
Mohawk also moves to dismiss Designers' third cause of action,
which alleges that the defendant engaged in deceptive trade
practices in violation of NYGBL section 349. To successfully
state a violation of section 349, a plaintiff must allege that
the defendant's conduct is consumer-oriented, which is defined
as conduct that could affect similarly situated customers. See
Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank,
N.A., 85 N.Y.2d 20, 25-26, 623 N.Y.S.2d 529, 532-33,
647 N.E.2d 741 (1995); see also MaGee v. Paul Revere Life Ins. Co.,
954 F. Supp. 582, 586 (E.D.N.Y. 1997) (holding that the injury
alleged must be to the public generally as opposed to the
plaintiff alone). Although the plaintiff is not required to
allege a pattern of conduct or repetitive deceptive trade
practices, it must allege "a broader impact on consumers at
large." Id. at 25, 623 N.Y.S.2d at 532, 647 N.E.2d 741.
Furthermore, it is well established that private contract
disputes, which are unique to the parties in the lawsuit are not
protected by section 349. Id.; see New York Univ. v.
Continental Ins. Co., 87 N.Y.2d 308, 320, 639 N.Y.S.2d 283,
662 N.E.2d 763 (1995). In addition to alleging that the defendant's
conduct was consumer-oriented, the plaintiff must also allege
that the conduct was misleading or dishonest in a material
respect, and that it caused an injury to the plaintiff. See
Oswego Laborers' 85 N.Y.2d at 25, 623 N.Y.S.2d at 532,
647 N.E.2d 741.
Here, Designers fails to allege facts sufficient to establish
that Mohawk's conduct was consumer-oriented. The only statement
that the plaintiff makes which even suggests that Mohawk's
conduct affected similarly situated customers is that the
"unlawful actions of the defendant have caused damage and injury
to both the plaintiff herein and to its consumer customers."
This conclusory assertion is insufficient. See Allahabi v. New
York Life Ins. Co., 1999 WL 126442 *2 (S.D.N.Y. March 10, 1999)
(holding that a conclusory assertion of consumer-oriented
conduct should be disregarded); see, e.g., In re American
Express Co. Shareholder Litig., 39 F.3d 395, 400-01 n. 3 (2d
Cir. 1994) ("[C]onclusory allegations of the legal status of the
defendants' acts need not be accepted as true for the purposes
of ruling on a motion to dismiss.").
As Designers offers no other factual allegation that Mohawk's
allegedly improper actions were consumer-oriented, this case is
clearly a private contract dispute that is unique to the parties
and does not fall within the ambit of section 349. See
Oswego, 85 N.Y.2d at 25, 623 N.Y.S.2d at 532, 647 N.E.2d 741;
New York Univ., 87 N.Y.2d at 320, 639 N.Y.S.2d at 283,
662 N.E.2d 763. Accordingly, the defendant's motion to dismiss the
third cause of action is granted.
Having reviewed the submissions of the parties, it is hereby
ORDERED, that the defendant's motion to dismiss the first
cause of action in the complaint is DENIED; and it is further
ORDERED, that the plaintiffs request for injunctive relief
as alleged in the second cause of action is consolidated in the
first cause of action, and the second cause of action is
dismissed; and it is further
ORDERED, that the defendant's motion to dismiss the third
cause of action is GRANTED; and it is further
ORDERED, that the parties are directed to report to United
States Magistrate Judge E. Thomas Boyle to proceed with
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