The opinion of the court was delivered by: Cedarbaum, J.
Sarah Goldstein commenced this purported class action against defendant
Hutton, Ingram, Yuzek, Gainen, Carrol & Bertolotti ("Hutton"), a New York
City law firm, for alleged violations of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). In a prior
opinion, I denied Hutton's motion to dismiss, but stated that "[a]ll the
factual issues, including the conclusory allegation that Hutton is a debt
collector, are subject to reexamination after the completion of discovery
on a motion for summary judgment." Goldstein v. Hutton, Ingram, Yuzek,
Gainen, Carrol & Bertolloti, 39 F. Supp. 2 d 394, 396 (S.D.N.Y. 1999).
Hutton now moves for summary judgment pursuant to Fed.R.Civ.P. 56. For
the following reasons, Hutton's motion is granted.
The following facts are undisputed. Plaintiff Goldstein leased an
apartment at 415 East 64th Street in Manhattan from Stahl York Avenue Co.
("Stahl") from 1992 through 1998. Beginning in 1996, Goldstein and Stahl
had several disputes and engaged in periodic litigation stemming from
Goldstein's alleged violations of the lease and failure to pay rent.
Defendant Hutton represented Stahl in connection with these disputes.
In September 1997, Hutton served Goldstein with a notice to cure a
breach of the lease based on Goldstein's alleged unauthorized subletting
and altering of the apartment. Hutton then served a notice of termination
in October 1997. After the notice was served, Goldstein tendered payment
of rent for August, September and November. Stahl did not accept the rent
checks so as to avoid waiving its claim that the lease had been
On November 14, 1997, Stahl commenced a holdover proceeding in state
court to recover possession of the apartment. Goldstein was served with a
notice of petition, prepared by Hutton, that, inter alia, demanded
payment of $1,290.81 in back rent for August, September and October, and
payment of rent on an ongoing basis from November 1. In a court appearance
on January 6, 1998, at which Stahl was represented by a Hutton attorney,
the parties settled the dispute "without prejudice" based on Goldstein's
representation that no illegal subtenant resided in the apartment. The
issue of Goldstein's unpaid rent for August through November was not
resolved in the settlement.
On January 7, 1998, Goldstein was served with the three day notice at
issue in this case (the "Notice"). The Notice was prepared by Hutton, and
contained Hutton's name and return address at the bottom of the Notice
and on both the envelope in which the Notice was mailed and the certified
mail receipt. The Notice sought payment of the outstanding rent for
August 1997 through January 1998 and stated the following:
PLEASE TAKE NOTICE that you are hereby required to pay
Stahl York Avenue Co., landlord of the above premises,
the sum of $2,583.02 for rent of the premises [from
August 1997 through January 1998 at the rate of $430.27
On January 15, 1998, Stahl commenced a summary eviction proceeding
against Goldstein. Goldstein filed her complaint in this action on
February 27, 1998. The summary eviction action was settled by stipulation
on April 1, 1998.
Over the one-year period from February 27, 1997 through February 27,
1998, Hutton issued, through a process server, 145 three day notices.
Hutton received approximately $5,000 in revenue from the issuance of the
three day notices, which constitutes .05% of Hutton's roughly $10,000,000
in revenue for that period.*fn2
Goldstein alleges that the Notice violates the FDCPA because (1) it
lacks a thirty day validation notice, in violation of
15 U.S.C. § 1692g; (2) it fails to disclose that Hutton was
attempting to collect a debt and that any information obtained would be
used for that purpose, in violation of 15 U.S.C. § 1692e(11); and (3)
it contains threats to take actions that could not legally be taken, in
violation of 15 U.S.C. § 1692e(5).
Hutton moves for summary judgment on the grounds that (1) the Notice
did not violate the FDCPA "given the entire context in which the parties'
communications took place", Pl. Br. at 11, and (2) it ...