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GOLDSTEIN v. HUTTON

August 15, 2001

SARAH GOLDSTEIN, PLAINTIFF
v.
HUTTON, INGRAM, YUZEK, GAINEN, CARROLL & BERTOLOTTI, DEFENDANT.



The opinion of the court was delivered by: Cedarbaum, J.

OPINION

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.

BACKGROUND

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 terminated.

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 per month].
You are required to pay within three days from the day of service of this notice, or to give up possession of the premises to the landlord. If you fail to pay or to give up the premises, the landlord will commence summary proceedings against you to recover possession of the premises.*fn1

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 ...


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