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City of New York v. Smokes-Spirits.Com

June 9, 2009


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

This opinion is uncorrected and subject to revision before publication in the New York Reports.

These consolidated actions arise out of plaintiff City of New York's claims that defendants' allegedly illegal marketing and shipment of cigarettes into this State have deprived it of tax revenues. To resolve plaintiff's state law claims, the United States Court of Appeals for the Second Circuit has certified two questions to us. First, "[d]oes the City have standing to assert its claims under General Business Law § 349?" Second, "[m]ay the City assert a common law public nuisance claim that is predicated on N.Y. Public Health Law § 1399-ll?" We answer both questions in the negative.


Collectively, New York State and City impose some of the highest cigarette excise taxes in the nation (see Tax Law §§ 471, 471-a; McKinney's Uncons Laws of NY § 9436 [1]; Administrative Code of the City of New York § 11-1302 [a] [1]-[2]). At the time these actions were commenced, owing to the divergence in cigarette taxes throughout the nation, a carton of premium brand cigarettes purchased in Virginia or Kentucky cost approximately $30.00, while the same carton cost $70.00 in New York City.*fn1 This price differential is based almost entirely on the variance between cigarette excise taxes.

New York City's smokers cannot evade responsibility for City and State taxes simply by purchasing shipments of cigarettes from out-of-state sellers -- like defendants -- who operate in jurisdictions that impose minimal cigarette taxes. That is because, subject to exceptions not relevant here, the Tax Law and the Administrative Code of the City of New York require consumers to pay a tax on all cigarettes possessed for use in the City (see Tax Law §§ 471 [2], 471-a; Administrative Code of the City of New York § 11-1302 [3]). Thus, although out-of-state cigarette retailers are not required to collect State and City taxes at the time of sale, those taxes are still due and owing by a purchaser who possesses the cigarettes for use in New York.

Moreover, a federal law -- the Jenkins Act -- requires out-of-state cigarette sellers to file monthly reports with New York State's tobacco tax administrator (see 15 USC § 376 [a] [2]) and subjects violators to criminal penalties for failure to do so (see id. at § 377). Such reports -- which must identify the name and address of persons to whom cigarette shipments were made along with the quantity and brand of cigarettes purchased --assist New York State taxing authorities in their efforts to collect cigarette use taxes (see id. at § 376 [a] [2]). The reports also further the collection efforts of the City because, by agreement, the State's Department of Taxation and Finance is obligated to share such reports with the City's Department of Finance.

According to the City's complaints, defendants are outof-state entities and persons engaged in the business of selling cigarettes over the Internet. They are located in States with negligible cigarette taxes and they have marketed and shipped cigarettes to New York City residents. As relevant here, certain defendants' websites have allegedly misrepresented that their Internet cigarette sales are "tax free," that their customers did not have to pay cigarette taxes, and/or that they are not required to file Jenkins Act reports. Due to these "materially deceptive and misleading" statements, the City alleges that some New York consumers were duped into purchasing cigarettes over the Internet in reliance on an entirely illusory tax savings. Consumers' apparent savings would disappear if the defendants filed Jenkins Act reports thereby allowing the City to locate cigarette purchasers and collect excise taxes owed for cigarette use. The City claims that defendants' deceptive statements, along with their failure to file Jenkins Act reports, have injured it in an undetermined amount of unpaid cigarette taxes. For this injury, the City seeks redress under GBL § 349 (h).

In two of its actions, the City also brought a common law public nuisance claim. Its basis lies in the legislative findings that accompanied Public Health Law § 1399-ll, which stated, in part, that "[t]he legislature finds and declares that the shipment of cigarettes sold via the internet or by telephone or by mail order to residents of this state poses a serious threat to public health, safety, and welfare" (see Legislative Findings, L 2000, ch 262, § 1, McKinney's Cons Laws of NY, Book 44, Public Health Law § 1399-ll, at 238). After outlining investigatory efforts that established that certain defendants had made shipments into its jurisdiction in violation of § 1399-ll, the City alleged that defendants' illicit shipments contributed to a public nuisance that "unreasonably and substantially interfer[ed] with rights common to the general public, with commerce, and the quality of daily life, and endanger[ed] the property, health, and safety of large numbers of residents of New York City." Accordingly, plaintiff sought an injunction to prevent additional illegal shipments and reimbursement of its costs for abating the claimed public nuisance.

The federal district court dismissed the City's General Business Law § 349 and public nuisance claims. On appeal, the Circuit Court recognized that while standing under General Business Law § 349 (h) had been extended to consumers and competitors, the statute had not yet been interpreted to grant a right of action to parties not suing in either of those capacities. The court also questioned the propriety of the City bringing a public nuisance claim predicated upon Public Health Law § 1399-ll. Accordingly, the court certified two legal questions to us. We now answer both in the negative.*fn2


General Business Law § 349 (a) declares unlawful "[d]eceptive acts or practices in the conduct of any business." As amended in 1980, the statute provides a private right of action to "any person who has been injured by reason of" such illegal conduct (see General Business Law § 349 [h]). The purpose of this amendment was to expand enforcement authority beyond the Attorney General and thereby ensure more optimal protection of the public (see Karlin v IVF Am., 93 NY2d 282, 291 [1999], quoting Mem of Assemblyman Strelzin, L 1980, ch 346, § 1, 1980 NY Legis Ann, at 146; Givens, Practice Commentaries, McKinney's Cons Laws of NY, Book 19, General Business Law § 349, at 566, quoting 1980 McKinney's Sessions Laws at 1867 [1988] ["[T]he purpose of the private right[] of action was to permit private enforcement against injuries resulting from consumer fraud"] [internal quotation marks omitted]).

To successfully assert a section 349 (h) claim, a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice (see Stutman v Chemical Bank, 95 NY2d 24, 29 [2000]). Here, the City insists that it is part of the broad class of "person[s]" granted standing to pursue a section 349 claim (see General Construction Law § 37; Joseph Thomas Moldovan, Note, New York Creates a Private Right of Action to Combat Consumer Fraud: Caveat Venditor, 48 Brook L Rev 509, 526-527 [1982]). In a proper case, the City may be able to avail itself of a remedy pursuant to subsection (h). But it has failed to establish standing here because its claimed injury, in the form of lost tax revenue, is entirely derivative of injuries that it alleges were suffered by misled consumers who purchased defendants' cigarettes over the Internet.

In Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc. (3 NY3d 200 [2004]), we held that "derivative actions are barred" under section 349 (h) (id. at 207-208). "An injury is indirect or derivative when the loss arises solely as a result of injuries sustained by another party" (id. at 207). Thus, we concluded that the plaintiff insurance plan could not recover medical payments made on behalf of subscribers who suffered from smoking-related illnesses even though the defendants' misrepresentations as to the negative health effects of smoking allegedly caused those injuries. Although the plan had incurred costs due to the alleged deception, its injury was still "indirect" -- and thus not compensable under section 349 (h) -- "because the losses it experienced arose wholly as a result of smoking related illnesses suffered by [its] subscribers" (id.). In rendering this decision, we noted the lack of any clear indication from the Legislature that derivative injuries were actionable under section 349 (h) (see id. at 206-207); our concern with expanding section 349 to permit "'a tidal wave of litigation against businesses that was not intended by the Legislature'" (see id. at 207, quoting Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 26 [1995]); and that our holding was "in accord with several other courts that recognize a remoteness bar to recovery under their state consumer protection statutes" (see id. at 208 n 3 [citing cases]).

The City's claimed injury here is just as indirect as the insurer's was in Blue Cross. Quite simply, had the allegedly deceived consumers not been improperly induced to purchase defendants' cigarettes then the City would have no claim to lost tax revenue (see Blue Cross, 3 NY3d at 207 ["Although [the insurer] actually paid the costs incurred by its subscribers, its claims are nonetheless indirect because the losses it experienced arose wholly as a result of smoking related illnesses suffered by those subscribers"]; see also Laborers Local 17 Health & Benefit Fund v Phillip Morris, Inc., 191 F3d 229, 239 [2d Cir 1999] ["Being purely contingent on harm to third parties, these injuries are indirect"]). Although in some sense the City's injuries are "caused" by defendants' alleged conduct, this Court has required more than an allegation of "but for" cause to state a claim for relief under section 349 (h) (see Blue Cross, 3 NY3d at 208; Stutman, 95 NY2d at 30 ["[P]laintiffs allege that because of defendant's deceptive act, they were forced to pay a $275 fee that ...

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