The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:
Plaintiff Gabrielle Douyon ("Plaintiff" or "Douyon") has brought this lawsuit on the basis of alleged unfair, abusive and deceptive practices utilized by the Defendants in their attempt to collect an alleged medical debt from the Plaintiff. Am. Compl. ¶ 2. As a First Cause of Action, Plaintiff asserts claims for violations of various provisions of the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. against Defendant Seymour (a.k.a Sy) Schneider ("Schneider") only. The following claims are asserted against all Defendants: Deceptive Acts and Practices Unlawful in Violation of New York General Business Law ("NY GBL") § 349 (Second Cause of Action), Intentional Infliction of Emotional Distress (Third Cause of Action ), and Slander (Fourth Cause of Action). Plaintiff also asserts claims for Negligent Hiring, Retention, Training, and Supervision (Fifth Cause of Action) and Negligence (Sixth Cause of Action) against Defendants NY Medical Health Care, P.C. ("NY Medical") and Faraidoon Daniel Golyan, M.D. ("Dr. Golyan"). Both parties have moved for summary judgment. Plaintiff seeks partial summary judgment for certain violations of the FDCPA by Defendant Schneider and for certain violations of NY GBL § 349 by all Defendants. Defendants seek summary judgment on Plaintiff's NY GBL § 349 claim as well as her intentional infliction of emotional distress and negligence claims. Defendants also seek summary judgment on the issue of whether NY Medical can be held vicariously liable for Schneider's acts.
The parties submitted the following documents in connection with Plaintiff's motion for summary judgment: Plaintiff's Memorandum of Law [DE 72-19] ("Pl's Mem."); Plaintiff's Rule 56.1 Statement [DE 72-1] ("Pl's. Stmt."); Defendants' Memorandum of Law in Opposition [DE 73] ("Defs.' Opp. Mem.) with Exhibits [DE 75]; Defendants' Rule 56.1 Counterstatement [DE 73-1] ("Defs.' Counterstmt."); Plaintiff's Reply Memorandum of Law [DE 74] ("Pl's Reply Mem."); and the Declaration of Daniel A. Schlanger, Esq. [DE 72-2] ("Schlanger Decl.") with Exhibits. In connection with Defendants' motion, the Court reviewed and considered the following: Defendants' Memorandum of Law [DE 68-1] ("Defs.' Mem."), Defendants' Rule 56.1 Statement [DE 68-2] ("Defs.' Stmt.") with Exhibits; Plaintiff's Memorandum of Law in Opposition [DE 70] ("Pl's. Opp. Mem."); Plaintiff's Rule 56.1 Counterstatement and Statement of Additional Facts [DE 69] ("Pl's. Counterstmt.");*fn1 the Declaration of Daniel A. Schlanger, Esq. [DE 69-1] ("Schlanger Opp. Decl.") with Exhibits; Defendants' Counterstatement in Response to Plaintiff's Statement of Additional Facts [DE 71-1] ("Defs' Reply Counterstmt."); Defendants' Reply Memorandum of Law [DE 71] ("Defs.' Reply Mem."); and the Affidavit of Kourosh Golyan [DE 71-2]. Having considered the foregoing submissions, as well as the applicable law, the Court GRANTS in part and DENIES in part Plaintiff's motion for summary judgment and GRANTS in part and DENIES in part Defendants' motion for summary judgment for the reasons that follow.
The following undisputed facts are drawn from the parties' Rule 56.1 Statements and the Stipulated Facts set forth in the Proposed Joint Pre-Trial Statement signed by both parties [DE 60] ("Pre-Trial Stmt."). In considering a motion for summary judgment, the Court construes the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005).
Plaintiff Gabrielle Douyon is a resident of Elmont New York. See Defs.' Counterstmt. ¶ 1. Douyon is a "consumer" as that term is defined under the FDCPA. Id. ¶ 2.
Defendant NY Medical is a cardiology practice with principal places of business in Great Neck, New York and Forest Hills, New York. Id. ¶ 3. Defendant Kourosh Golyan, a.k.a. David Golyan ("David Golyan"), is the office manager of NY Medical and oversees its collection activities. Id. ¶ 4. Defendant Faraidoon Daniel Golyan, M.D. ("Dr. Golyan") is a licensed medical doctor and co-owner of NY Medical. Pre-Trial Stmt. ¶ 3.
Defendant Schneider has worked as a freelance debt collector since 2009. Defs.' Counterstmt. ¶ 15. NY Medical retained Schneider's services in connection with its attempt to collect a debt from Plaintiff. Id. ¶ 13.
B. Douyon's Surgery and the Alleged Debt
On or about September 24, 2009, the Plaintiff was admitted to North Shore Hospital in Westbury, New York for emergency heart surgery. Am. Compl. ¶ 24. The Plaintiff's cardiologist did not have admitting privileges at North Shore Hospital at that time. Id. ¶ 25. As a result, Dr. Golyan performed emergency heart surgery on Plaintiff. See Defs.' Counterstmt. ¶ 5; Pre-Trial Stmt. ¶ 4. Dr. Golyan also saw Plaintiff in the hospital and in the offices of NY Medical after her surgery. Defs.' Counterstmt. ¶ 5. Plaintiff continued to receive treatment from Dr. Golyan for approximately nine months, up until June 2010. Am. Compl. ¶ 27.
NY Medical negotiated with Plaintiff's employer and the employer's third-party benefits administrators to reduce Plaintiff's NY Medical bill from $76,587 to $40,000. Pre-Trial Stmt. ¶ 5. Plaintiff's insurer, Empire Blue Cross/Blue Shield ("Empire"), paid $34,000 of that bill to NY Medical directly. Defs.' Counterstmt. ¶ 7. Empire also sent Plaintiff a check for approximately $5,000 in early 2010. Pre-Trial Stmt. ¶ 6.*fn2 Plaintiff did not pay over to NY Medical the $5,215 after receiving the checks from Empire, but rather claims that she cashed the checks and then sent the money to her relatives in Haiti. See Defs.' Stmt. ¶ 9; Pl's. Counterstmt.
¶ 9. This alleged payment shortfall is denominated a "debt" and was previously the subject of a breach of contract counterclaim asserted by NY Medical against Plaintiff in this case. See DE 56. However, on November 25, 2011, NY Medical filed a Notice of Acceptance of Offer of Judgment in the amount of $5,378 with respect to that claim, see DE 65, and Judgment was entered, see DE 66.
C. Defendants' Debt Collection Attempts
NY Medical retained the services of Defendant Seymour Schneider to collect Plaintiff's debt. Defs.' Counterstmt. ¶ 13. NY Medical employed Schneider on multiple occasions to collect debts owed by its patients and compensated him by paying him a percentage of the funds he collected from debtors. Pl's. Counterstmt. ¶ 6; Defs.' Counterstmt. ¶ 17.
At some point in the summer of 2010, Schneider visited Douyon's place of work and discussed with her the alleged debt she owed NY Medical. Defs.' Counterstmt. ¶¶ 21-22. During that visit, Schneider discussed Plaintiff's alleged debt in the presence of Douyon's co-worker, Donna Tucker. Id. ¶ 22. When Schneider departed Douyon's workplace after his initial visit, he left his business card. Id. ¶ 23. The business card depicts an American flag and bears the title "Financial Crimes Investigator" under Schneider's name. Id.
In connection with his debt collection efforts, Schneider left Plaintiff a message on her voicemail. See id. ¶ 25. The parties offer slightly different transcriptions of the message in their Rule 56.1 Statements. See id. However, in the "Stipulated Facts" section of the Joint Pre-Trial Statement, the parties agreed that Schneider left the following message:
(Undecipherable) appreciate necessarily (Undecipherable) by coming out to your house with the uh doctors. I'm gonna be at your place tomorrow, at your employment and I'm gonna see about coming with the sheriff and have you arrested. You want to play games and I'm gonna play the same game and I'm gonna be the winner.
Joint Pre-Trial Stmt. ¶ 18. Schneider never actually contacted the sherriff. Defs.' Counterstmt. ¶ 26.
In addition to Schneider's efforts, David Golyan sent Plaintiff letters on January 19, 2010 and March 15, 2010 which contained the following language:
** Please Note: if we do not receive the check(s) by [date]. We have no other choice to place your account in our legal department which will result in a 10% percent interest every 30 days on the full amount of the balance due with Interest Accumulated added to the principal amount due** See id. ¶ 8; Schlanger Aff., Ex. H. Plaintiff testified that she did not receive these letters. Defs.' Stmt. ¶ 11; Pl's. Counterstmt. ¶ 12.
The Amended Complaint alleges other debt collection activity by Defendants. However, only the undisputed facts are set forth in this section. To the extent that the other activity is relevant to this motion, that activity is discussed below.
Fed. R. Civ. P. 56(a) dictates that a "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the initial burden of establishing the absence of any genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). To determine whether the moving party has satisfied this burden, the Court is required to view the evidence and all factual inferences arising from that evidence in the light most favorable to the non-moving party. Doro v. Sheet Metal Workers' Int'l Ass'n, 498 F.3d 152, 155 (2d Cir. 2007); Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005).
Where the movant shows a prima facie entitlement to summary judgment, "the burden shifts to the non-movant to point to record evidence creating a genuine issue of material fact." Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). "[T]he non-movant cannot rest on allegations in the pleadings and must point to specific evidence in the record to carry its burden on summary judgment." Id.; see also McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) ("[S]peculation alone is insufficient to defeat a motion for summary judgment."); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001) ("Even where facts are disputed, in order to defeat summary judgment, the non-moving party must offer enough evidence to enable a reasonable jury to return a verdict in its favor."). Summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Dobbs v. Dobbs, No. 06-CV-6104, 2008 WL 3843528, at *5 (S.D.N.Y. Aug. 14, 2008) ("The Court's goal should be to isolate and dispose of factually unsupported claims . . . .") (internal quotation marks omitted).
Although the Amended Complaint alleges several distinct violations of the FDCPA, Plaintiff seeks summary judgment only with respect to the violations for which she claims the underlying facts are undisputed, namely: (1) Schneider's failure to make required statutory disclosures; (2) Schneider's improper disclosure of information concerning Douyon's debt to third parties; (3) the voicemail message left by Schneider that allegedly contains false threats of arrest; and (4) Schneider's distribution of his business card which gave the false impression that he is primarily a criminal investigator and that he is affiliated with the United States. Pl's. Mem. [DE 72-19] at 9-14. The Court will address each alleged violation in turn, but first addresses a threshold matter -- whether Schneider is a debt collector under the FDCPA.*fn3
Subject to certain exceptions not applicable here, a "debt collector" under the FDCPA is any person: who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.
15 U.S.C. § 1692a. Plaintiff's Rule 56.1 Statement asserts that Schneider is a debt collector. Pl's. Stmt. [DE 72-1] ¶ 14. In response, Defendants state that whether or not Schneider is a debt collector is a legal conclusion "that is respectfully referred to the Court for resolution." Defs.' Counterstmt. [DE 73-1] ¶ 14.
The Court concludes that Schneider is a debt collector under the FDCPA. First, the instrumentality of interstate commerce element is satisfied here because Schneider testified that he used telephones as part of the debt collection process. See Schneider Tr. at 39 ("Usually, after a first visit, I might have called to see if they were in, they got my message, if I left a message with someone at the house."), 50 ("It was a hot night, and I had called her . . . .").*fn4 It is well-settled that the use of a telephone satisfies the instrumentality of interstate commerce element under the FDCPA. Bridge v. Ocwen Fed. Bank, FSB, 681 F.3d 355, 360 (6th Cir. 2012); Watters v. Midland Credit Mgmt., Inc., No. 11-CV-177, 2012 WL 1666059, at *9 (D. Utah May 8, 2012) ("It is general knowledge that telephones are instrumentalities of interstate commerce whether or not they are used in interstate commerce."); Ellis v. Solomon & Solomon, P.C., 599 F. Supp. 2d 298, 300 n.3 (D. Conn. 2009), aff'd 591 F.3d 130 (2d Cir. 2010), cert denied 130 S. Ct. 3333 (2010) (defendant admitted that its "principal business in Connecticut is the collection of individual accounts owed using the instrumentalities of interstate commerce, including telephone and mail services"); see United States v. Giordano, 442 F.3d 30, 39 (2d Cir. 2006) (holding that national telephone network was a facility of interstate commerce under the federal murder-for-hire statute).
As to the regular or principal debt collection aspect of the statute, Defendants admit that since 2009, Schneider "has primarily worked as a freelance debt collector . . . . [a]nd from approximately May through September 2010 Mr. Schneider's freelance debt collection work included collecting money owed to New York Medical." Defs.' Counterstmt. [DE 73-1] ¶ 15. Moreover, Schneider testified that his job at his former employer, C.L.B., "was to go after [debtors] and try to collect the money that [clients] had, you know, paid out." Schneider Tr. at 20. Schneider further testified that he continued to perform these services on a freelance basis beginning in 2009 for clients, including NY Medical. See id. at 25, 28. Schneider estimated that he handled from 15 to 20 debt collection cases for NY Medical and 10 to 30 cases as a freelancer in 2009. Id. at 25-26, 35. Based on these facts, the Court concludes that Schneider's conduct satisfies the regular or principal debt collection prong of the definition and that Schneider was a "debt collector" for purposes of the FDCPA.
1. Failure to Make Statutory Disclosures
The FDCPA requires debt collectors to provide consumers with certain statutory notices which Plaintiff claims Schneider failed to provide.Defendants did not submit any opposition regarding these claims.
Plaintiff first argues that Schneider violated 15 U.S.C. § 1692g, which mandates that a debt collector send the consumer a written notice containing, inter alia, the following information: (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
15 U.S.C. § 1692g(a)(3)-(5); see Derisme v. Hunt Leibert Jacobson, PC, No. 10-CV-244, 2010 WL 4683916, at *4 (D. Conn. Nov. 10, 2010). The statement must be provided within five days after the initial communication with the consumer unless the initial communication contains the statements or the consumer has paid the debt. 15 U.S.C. § 1692(a). Plaintiff alleges that Schneider failed to provide the required statements within five days of his initial communication with Plaintiff. Am. Compl. ¶ 60.ix.
The notices required under 15 U.S.C. § 1692g must, by the terms of the statute, be in writing. Defendants admit that "aside from his business card, [Schneider] never gave Ms. Douyon any documents." Defs.' Counterstmt. [DE 73-1] ¶ 27; see Affidavit of Seymour Schneider ¶ 4 ("Schneider Aff.), Ex. 2 to Defs.' Opp. Mem. [DE 75]. The business card does not contain any of the 15 U.S.C. § 1692g notices. See Schlanger Decl., Ex. J. Section 1692g is a strict liability statute and a debt collector commits a violation whenever it fails to provide the required notice, regardless of whether or not the lack of disclosure is egregious and whether or not it caused any actual harm. See Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir. 1996); Ostrander v. Dentistry by Dr. Kaplansky, PLLC, No. 07-CV-852, 2010 WL 1407300, at *6 (W.D.N.Y. Mar. 30, 2010); Savino v. Computer Credit, Inc., 960 F. Supp. 599, (E.D.N.Y. 1997); Cavallaro v. Law Office of Shapiro & Kreisman, 933 F. Supp. 1148, 1154 (E.D.N.Y. 1996). There are no genuine issues of material fact regarding whether Schneider provided Plaintiff with the required written disclosures. Clearly, he did not. Therefore, Plaintiff is entitled to summary judgment on her § 1692g claim.
Section 1692e(11) also requires debt collectors to provide certain disclosures. Specifically, the subsection provides:
The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.
15 U.S.C. § 1692e(11). The statements required to be provided in the initial communication are often referred to as "Mini Miranda" notices. Foti v. NCO Fin. Sys., Inc., 424 F. Supp. 2d 643, 650 (S.D.N.Y. 2006). Plaintiff seeks summary judgment on her claim that Schneider violated § 1692e(11) because Schneider failed to include the required disclosures in his business card or in documents he allegedly left with Plaintiff at her workplace, see Pl's. Mem. [DE 72-19] at 10-11, or in the recorded voicemail message he left for Plaintiff, see id. at 13-14.
Plaintiff's motion is denied to the extent it is based on Schnider's business card and documents Schneider allegedly left at Plaintiff's workplace. The only § 1692e(11) claims alleged in the Amended Complaint pertain to Schneider's telephone messages and oral statements. See Am. Compl. ¶ 60 vi-viii. Thus, all of the § 1692e claims are premised on oral communications and the failure to include "e(11)" notices in the written material referenced by Plaintiff is not before the Court.
The Court does find, however, that Plaintiff is entitled to summary judgment on her § 1692e(11) claim with respect to the recorded voicemail message left by Schneider. In the voicemail message, Schneider stated:
(Undecipherable) appreciate necessarily (Undecipherable) by coming out to your house with the uh doctors. I'm gonna be at your place tomorrow, at your employment and I'm gonna see about coming with the sheriff and have you arrested. You want to play ...