Supreme Court, Appellate Division, Second Department, New York.

PESCE BROTHERS, INC., doing business as Car Craft Truck Works, respondent,

v.

COVER ME INSURANCE AGENCY OF NJ, INC., et al., appellants.

Nov. 30, 2016.

 

Attorneys and Law Firms

Ginsberg, Becker & Weaver, LLP, New York, N.Y. (Robert D. Becker of counsel), for appellants Cover Me Insurance Agency of NJ, Inc., National Independent Truckers Insurance Company, RRG, and Michael J. Poller.

Sullivan & Klein, LLP, New York, N.Y. (Elizabeth A. Scoditti and Robert M. Sullivan for counsel), for appellant Hills Adjustment Bureau, Inc.

Ansell Grimm & Aaron, P.C., White Plains, N.Y. (Joshua S. Bauchner of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, and BETSY BARROS, JJ.

Opinion

 

*1 In an action, inter alia, to recover damages for fraud, the defendants Cover Me Insurance Agency of NJ, Inc., National Independent Truckers Insurance Company, RRG, and Michael J. Poller appeal from so much of an order of the Supreme Court, Richmond County (Dollard, J.), dated July 14, 2014, as denied those branches of their motion pursuant to CPLR 3211(a)(1) and (7) which were to dismiss the first through fifth causes of action insofar as asserted against them and pursuant to CPLR 3024 to strike scandalous and prejudicial matter from the complaint, and the defendant Hills Adjustment Bureau, Inc., separately appeals from so much of the same order as denied those branches of its motion pursuant to CPLR 3211(a)(7) which were to dismiss the first, second, fourth, and fifth causes of action insofar as asserted against it.

 

[1] ORDERED that the appeal by the defendants Cover Me Insurance Agency of NJ, Inc., National Independent Truckers Insurance Company, RRG, and Michael J. Poller from so much of the order as denied that branch of their motion which was pursuant to CPLR 3024 to strike scandalous and prejudicial matters from the complaint is dismissed, as no appeal lies as of right therefrom (see CPLR 5701[b][3] ), and leave to appeal has not been granted; and it is further,

 

ORDERED that the order is modified, on the law, by (1) deleting the provisions thereof denying those branches of the motion of the defendant Hills Adjustment Bureau, Inc., pursuant to CPLR 3211(a)(7) which were to dismiss so much of the first cause of action as alleged violation of General Business Law § 350, and the second, fourth, and fifth causes of action insofar as asserted against it, and substituting therefor a provision granting those branches of the motion, and (2), by deleting the provisions thereof denying those branches of the motion of the defendants Cover Me Insurance Agency of NJ, Inc., National Independent Truckers Insurance Company, RRG, and Michael J. Poller which were pursuant to CPLR 3211(a)(7) to dismiss so much of the first cause of action as alleged violation of General Business Law § 350, and the second, third, fourth, and fifth causes of action insofar as asserted against them, and substituting therefore provisions granting those branches of the motions; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements.

 

The plaintiff commenced this action, inter alia, to recover damages for violations of General Business Law §§ 349 and 350, fraud, negligent misrepresentation, injurious falsehood, and tortious interference with prospective business advantage. The defendant Hills Adjustment Bureau, Inc. (hereinafter Hills), moved pursuant to CPLR 3211(a)(7) to dismiss the first, second, and fourth through sixth causes of action insofar as asserted against it. The defendants Cover Me Insurance Agency of NJ, Inc., National Independent Truckers Insurance Company, RRG, and Michael J. Poller (hereinafter collectively the Cover Me defendants) separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them and pursuant to CPLR 3024 to strike scandalous and prejudicial matter from the complaint.

 

*2 The Supreme Court, inter alia, denied those branches of Hills’s motion which were pursuant to CPLR 3211(a)(7) to dismiss the first, second, fourth, and fifth causes of action in the complaint insofar as asserted against it and also denied those branches of the motion of the Cover Me defendants which were to dismiss the first through fifth causes of action in the complaint insofar as asserted against them pursuant to CPLR 3211(a), and pursuant to CPLR 3024 to strike certain scandalous and prejudicial matter from the complaint. Hills and the Cover Me defendants separately appeal. We modify.

 

[2] The plaintiff failed to allege, in that part of the first cause of action which seeks to recover damages for the defendants’ alleged violation of General Business Law § 350, that the defendants engaged in any act of false advertising within the meaning of that statute (see General Business Law § 350–a) or, in any event, that the plaintiff relied upon or even knew of any such advertising (see Klein v. Robert’s Am. Gourmet Food, Inc., 28 A.D.3d 63, 72, 808 N.Y.S.2d 766; Andre Strishak & Assoc., v. Hewlett Packard Co., 300 A.D.2d 608, 610, 752 N.Y.S.2d 400; Gershon v. Hertz Corp., 215 A.D.2d 202, 203, 626 N.Y.S.2d 80).

 

[3] [4] With respect to the second cause of action, which was to recover damages for fraud, the plaintiff failed to allege that the defendants made any misrepresentations for the purpose of inducing the plaintiff to rely on them or that the plaintiff so relied on any such misrepresentations (see Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, 668 N.E.2d 1370; Daly v. Kochanowicz, 67 A.D.3d 78, 89, 884 N.Y.S.2d 144). Regarding the third cause of action, which was to recover damages for negligent misrepresentation, the plaintiff failed to allege that the Cover Me defendants had a special relationship with the plaintiff imposing a duty on them to impart correct information to the plaintiff, that the Cover Me defendants imparted any information to the plaintiff, or that the plaintiff relied on any such information (see Simmons v. Allstate Indem. Co., 112 A.D.3d 611, 611, 975 N.Y.S.2d 899).

 

[5] With respect to the fourth cause of action, which was to recover damages for injurious falsehood, the plaintiff failed to allege “special damages with sufficient particularity” (see Shaw v. Club Mgrs. Assn. of Am., Inc., 84 A.D.3d 928, 930, 923 N.Y.S.2d 127).

 

[6] The plaintiff failed to allege in the fifth cause of action, which was to recover damages for tortious interference with prospective business advantage, that the defendants acted with the sole purpose of harming the plaintiff or by using unlawful means (see Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190, 785 N.Y.S.2d 359, 818 N.E.2d 1100; MVB Collision, Inc. v. Progressive Ins. Co., 129 A.D.3d 1040, 1040, 13 N.Y.S.3d 139; Thome v. Alexander & Louisa Calder Found., 70 A.D.3d 88, 108, 890 N.Y.S.2d 16; see generally New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 317–318, 639 N.Y.S.2d 283, 662 N.E.2d 763; Rocanova v. Equitable Life Assur. Socy of U.S., 83 N.Y.2d 603, 614, 612 N.Y.S.2d 339, 634 N.E.2d 940).

 

[7] However, the Supreme Court properly denied those branches of the defendants’ respective motions which sought to dismiss so much of the first cause of action as alleged a violation of General Business Law § 349, since the plaintiff sufficiently alleged that the defendants engaged in consumer-oriented conduct that is materially misleading and that it suffered injury as a result of the allegedly deceptive act or practice (see North State Autobahn, Inc. v. Progressive Ins. Group Co., 102 A.D.3d 5, 11–20, 953 N.Y.S.2d 96).

 

*3 [8] As the Supreme Court properly determined, the Cover Me defendants waived their right to move pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them based upon documentary evidence, because this defense was not raised in their answer and the motion was not made before the answer was due (see CPLR 3211[e]; Margolin v. IM Kapco, Inc., 89 A.D.3d 690, 691, 932 N.Y.S.2d 122).

 

All Citations

— N.Y.S.3d —-, 144 A.D.3d 1120, 2016 WL 6991453, 2016 N.Y. Slip Op. 08058

 

United States Court of Appeals,

Third Circuit.

Yohan Choi, Appellant

v.

ABF Freight System, Inc.

No. 15-4021

|

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 19, 2016

|

(Opinion filed: December 13, 2016)

On Appeal from the United States District Court for the District of New Jersey (District Court No. 3-14-cv-07458), District Judge: Hon. Anne Thompson

Attorneys and Law Firms

Brian P.R. Eisenhower, Esq., Hill Rivkins, New York, NY, for Plaintiff-Appellant

Barry N. Gutterman, Esq., Barry Gutterman & Associates, Bedford Hills, NY, Kenneth A. Olsen, Esq., Lebanon, NJ, for Defendant-Appellee

Before: McKEE, Chief Judge,*RENDELL and HARDIMAN, Circuit Judges.

 

 

OPINION†

 

MCKEE, Circuit Judge.

*1 Plaintiff Yohan Choi appeals the District Court of New Jersey’s denial of Choi’s Motion for Reconsideration and the District Court’s partial grant of Defendant ABF Freight System, Inc.’s (“ABF”) Motion for Summary Judgment.

 

Choi filed a one-count complaint in the District Court against ABF asserting breach of contract under the Carmack Amendment to the Interstate Commerce Act.1 He sought damages in the amount of $61,088.29 after a fire destroyed the ABF “ReloCube” containing Choi’s property while in transit.

 

The parties agree that the Carmack Amendment applies to this case, but they dispute whether ABF’s liability was limited. The District Court limited ABF’s liability to $7,500, per the bill of lading’s language.

 

For the reasons that follow, we affirm.2

 

 

I.

Because we write for parties familiar with this case’s factual and procedural history, we provide only the background necessary to our conclusions.

 

The general rule under the Carmack Amendment “is that an interstate carrier is strictly liable for damages up to ‘the actual loss or injury to the property caused by (A) the receiving carrier, (B) the delivering carrier, or (C) [certain intermediary carriers].’ ”3 The carrier’s liability may be limited, however, if it satisfies the following four requirements:

(1) maintain a tariff within the prescribed guidelines of the Interstate Commerce Commission; (2) obtain the shipper’s agreement as to [the shipper’s] choice of liability; (3) give the shipper a reasonable opportunity to choose between two or more levels of liability; and (4) issue a receipt or bill of lading prior to moving the shipment.4

 

The parties primarily dispute the third requirement: whether Choi was afforded a reasonable opportunity to choose between two or more levels of liability.5 ABF offered coverage for negligence and coverage for catastrophic events. The bill of lading expressly included a $7,500 maximum liability per ReloCube in the event of “trailer fire, vehicle collision, vehicle overturn or complete container theft.”6 Choi never sought additional coverage for catastrophic damage.

 

As he did in the District Court, Choi argues that the additional negligence coverage offered was insufficient to satisfy the Carmack Amendment’s two-or-more-levels requirement and that ABF was required to provide two or more levels of liability coverage with respect to catastrophic damage.

 

 

II.

*2 This Court has not addressed the specific issue of whether the Carmack Amendment requires two or more liability options per subset of damage. We have, however, broadly stated the Amendment’s two-or-more-levels requirement. In Emerson Elec. Supply Co. v. Estes Express Lines Corp., we held that “[t]o satisfy the two or more levels of liability requirement, a carrier must offer two or more shipping rates with corresponding levels of liability for one type of shipment.”7

 

The District Court concluded that ABF was not required to provide two levels of coverage per subset of liability (i.e., two levels of coverage for catastrophic events and two levels of coverage for negligence).8 The Carmack Amendment does not mention such a requirement, and other appellate courts have not required multiple levels of coverage for subsets of liability for compliance with the Amendment. Indeed, Choi concedes that no court has ever addressed whether a common carrier must offer two or more liability options per subset of damage. While both parties analogize and distinguish a variety of federal cases, they cite to no case that establishes such a requirement. We reject Choi’s argument that this lack of precedent is “meaningless.” We therefore agree with the District Court and decline to impose a rule requiring interstate carriers to provide two or more levels of coverage per subset of liability.

 

The particular facts of this case further support our holding. For example, the bill of lading expressly included a $7,500 maximum liability per ReloCube (at no additional charge) for catastrophic damage in the event of “trailer fire, vehicle collision, vehicle overturn, or complete container theft.” Shippers like Choi also had the option to purchase additional carrier negligence liability coverage. Despite Choi’s prior experience with ABF and the bill of lading, Choi never sought additional coverage.9

 

In light of such facts and our precedent, we find more than reasonable the District Court’s summary judgment rulings.

 

 

III.

For the reasons set forth above, we will affirm District Court’s judgment in its entirety.

 

All Citations

— Fed.Appx. —-, 2016 WL 7212154

 

 

Footnotes

*

Judge McKee concluded his term as Chief of the U.S. Court of Appeals for the Third Circuit on September 30, 2016.

†

This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

1

49 U.S.C. § 14706.

2

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

3

Certain Underwriters at Interest at Lloyds of London v. United Parcel Serv. of Am., Inc., 762 F.3d 332, 335 (3d Cir. 2014) (quoting 49 U.S.C. § 14706(a)(1)) (alteration in original).

4

Emerson Elec. Supply Co. v. Estes Express Lines Corp., 451 F.3d 179, 186 (3d Cir. 2006) (alteration in original).

5

Choi makes additional arguments as to liability and the amount of damages. Our conclusion, infra, that ABF’s acceptance of liability and the stated limitation are proper under the Carmack Amendment renders those arguments irrelevant. We therefore do not address them.

6

App. 43a.

7

451 F.3d at 188.

8

Cf. Kemper Ins. Cos. v. Fed. Express Corp., 252 F.3d 509, 513 (1st Cir. 2001) (“[Plaintiff] has not cited, nor have we discovered, any case in which a court invalidated a contract providing two discrete levels of coverage.”) (internal footnote omitted).

9

Choi also filed an initial claim to ABF of $7,500 in this case in accordance with the bill of lading’s language limiting liability.