Opinion
13467/08.
Decided November 16, 2009.
Chidi Eze, Esq., Chidi Eze Associates, Brooklyn, NY, Attorney for Plaintiff.
Stuart L. Sanders, Esq., Kazlow Kazlow, New York, NY, Attorney for Defendant.
Defendant MoneyGram Payment Systems, Inc. moves to dismiss the second, third and fourth causes of action pursuant to CPLR 3211(a)(7) for failure to state a cause of action and to dismiss plaintiff's demands for punitive damages and attorney's fees. Defendant's motion to dismiss the action pursuant to CPLR 3211(a)(3) for lack of capacity or standing has been withdrawn.
BACKGROUND
The complaint alleges that plaintiff Sunday Anyika ("Anyika") purchased MoneyGram Payment Systems, Inc. ("MoneyGram") money orders valued at $9000 from Mony Communications ("Mony") on January 31 and February 1, 2008 that were made payable to "Freightmate Int'l" by Anyika. Anyika alleges he intended to use the money orders to pay for shipping and customs duties on trailer heads exported to Nigeria by his business, Freightmate International ("Freightmate"). However, Anyika claims that when he attempted to redeem the money orders by depositing them into Freightmate's bank account, MoneyGram prevented their redemption. As a result of MoneyGram's failure to redeem the money orders, Anyika claims that he lost the merchandise for which the money orders were meant to fund shipping and customs charges, as well as future business. Anyika's complaint includes causes of action for breach of contract, infliction of emotional harm, conversion, and unjust enrichment and demands for punitive damages and attorney's fees.
Nine money orders allegedly purchased by Anyika, totaling $8000, were submitted in support of the motion in the following amounts:
January 31, 2008 — 4 money orders of $1000 each
February 1, 2008 — 3 money orders of $1000 each
2 money orders of $500 each
In it's motion to dismiss the second, third and fourth causes of action, MoneyGram argues that Anyika has not alleged conduct sufficiently outrageous to satisfy the pleadings requirements for intentional infliction of emotional distress, the conversion claim is not viable absent an allegation of a wrong independent of the breach of contract claim, and a cause of action for unjust enrichment does not lie where the subject matter is governed by an enforceable written contract. Further, MoneyGram argues that Anyika's allegations do not satisfy the requirements for punitive damages nor allow plaintiff to recover an award of attorney's fees. Defendant Mony is in default and did not appear in response to the motion.
DISCUSSION
MoneyGram originally contended in it's motion that "Freightmate International" lacked capacity to maintain this suit because it did not appear in a search of the New York Department of State Business and Entity Database of corporations authorized to do business in New York. In opposition to the motion, Anyika provided a "Business Certificate" filed with the Kings County Clerk on August 22, 2007, indicating that he is conducting business under the name "Freightmate International" and his personal residence is the same as the business address listed in the complaint for Freightmate. However, plaintiff has not otherwise indicated that Freightmate is incorporated. Further, the business entity name "Freightmate International" does not contain the words "corporation," "incorporated," "limited," or any abbreviation of such words pursuant to Business Corporation Law §§ 301(a)(1) and 202(b). Therefore, it is concluded that, notwithstanding the allegations in the complaint, Freightmate is only a trade name for Anyika's sole proprietorship which was created pursuant to General Business Law § 130 ( see Matter of D B Constr. of Westchester, Inc., 21 Misc 3d 1125A [Sup Ct, Westchester County 2008]). While General Business Law § 130(9) does not preclude an individual that has properly filed a business certificate with the county clerk from "maintain[ing] an action or proceeding in [his] assumed name," the registering of the business name "does not create another entity" ( Victor Auto Parts, Inc. v Cuva, 148 Misc 2d 349, 351 [Sup Ct, Monroe County 1990]; see General Business Law § 130). All of the allegations in the complaint involve actions by Anyika performed in the course of the operation of, and for the benefit of, Anyika's Freightmate business. Accordingly, there is only one plaintiff herein, Anyika doing business as Freightmate International. Freightmate is not permitted to maintain causes of action against MoneyGram as an independent entity ( see Victor Auto, 148 Misc 2d at 351). The argument of plaintiff that Freightmate may interpose claims for equitable relief independent of the contract between Anyika and defendants constitutes an improper attempt to split a cause of action.
On a motion to dismiss pursuant to CPLR 3211 the court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the benefit of every possible favorable inference ( Campaign for Fiscal Equity, Inc. v State of New York, 86 NY2d 307, 318; see also Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414). The role of the court is to "determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v Martinez, 84 NY2d 83, 87). Therefore, the complaint must be declared legally sufficient if the court determines that plaintiffs are entitled to relief on any reasonable view of the facts stated ( Campaign for Fiscal Equity, Inc., 86 NY2d at 318).
In his second cause of action, plaintiff alleges that by stopping the redemption of the money orders at issue, thus causing plaintiff "to suffer severe and lasting financial hardship, emotional and economic hardship" (Complaint ¶ 15), MoneyGram's conduct was outrageous and intended to injure the plaintiff. However, even accepting the plaintiff's allegations as true, MoneyGram's conduct was not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" ( Scarfone v Village of Ossining , 23 AD3d 540 , 542 [2d Dept 2005]; Andrews v Bruk, 220 AD2d 376, 376-377 [2d Dept 1995]; see also Howell v New York Post Co., 81 NY2d 115, 121). Accordingly, MoneyGram's motion to dismiss the second cause of action for the infliction of emotional distress must be granted. Plaintiff's third cause of action alleges that MoneyGram converted money belonging to plaintiff by denying the redemption of the money orders. MoneyGram contends that the conversion cause of action should be dismissed as duplicative of plaintiff's breach of contract cause of action since the "relations between the parties are governed by the terms of the written money orders and the applicable sections of the Uniform Commercial Code." "A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" ( Colavito v New York Organ Donor Network, Inc. , 8 NY3d 43 , 49-50). "[T]o establish a cause of action in conversion, the plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized domain over the thing in question . . . to the exclusion of the plaintiff's rights'" ( Estate of Giustino, 21 AD3d at 523, quoting Independent Discount Corp. v Bressner, 47 AD2d 756, 757; see also Zendler Constr. Co., Inc. v First Adj. Group, Inc. , 59 AD3d 439 , 440). Tangible personal property or a specific sum of money must be involved ( see Independence Discount Corp., 47 AD2d at 757).
It is noted that the money orders at issue in this matter are "personal money orders" and are therefore "personal checks, not banker's or cashier's or traveler's checks" as no signature of a bank official appears on the instruments ( Berler v Barclays Bank of New York, 82 AD2d 437, 439 [1st Dept 1981]; see Adam Int'l Trading, Ltd. v Manufacturers Hanover Trust Co., 150 AD2d 294 [1st Dept 1989]). Accordingly, Articles 3 and 4 of the Uniform Commercial Code govern the rights of the holders of the negotiable instruments and the bank collection process with respect to their redemption. However, the amended complaint only raises claims pursuant to the common law and does not allege any causes of action pursuant to the Uniform Commercial Code.
"A claim of conversion cannot be predicated on a mere breach of contract" and where there are no independent facts alleged that constitutes a separate taking which could give rise to tort liability, apart from an alleged breach of contract, the cause of action must be dismissed ( Kopel v Bandwidth Tech. Corp. , 56 AD3d 320 , 320; see also Hamlet at Willow Cr. Dev. Co., LLC v Northeast Land Dev. Corp. , 64 AD3d 85 , 113 [2d Dept 2009]; Tornheim v Blue White Food Prods. Corp. , 56 AD3d 761 , 761; Hochman, 14 AD3d at 655; Fesseha v TD Waterhouse Inv. Servs., 305 AD2d 268, 269; Wolf v National Council of Young Israel, 264 AD2d 416, 417; Priolo Communications v MCI Telecom.Corp., 248 AD2d 453, 454; MBL Life Assur. Corp.v 555 Realty Co., 240 AD2d 357, 376). The third cause of action for conversion must be dismissed as duplicative of the breach of contract claim. The conversion claim is solely predicated on the alleged breach of contract and the complaint has not alleged the breach of a duty that is independent from the duty arising out of the contract itself ( see Hamlet, 64 AD3d at 113 [2d Dept 2009]; Wolf, 264 AD2d at 417). Plaintiff alleges in the fourth cause of action that MoneyGram was unjustly enriched when it prevented the redemption of the money orders and diverted plaintiff's money for it's own use. MoneyGram argues that the unjust enrichment cause of action should be dismissed where the subject matter of the claim is governed by a valid and enforceable written contract. "The existence of a valid and enforceable written contract governing a particular subject matter precludes recovery under a quasi-contract theory for events arising out of the same subject matter" ( Shah v Micro Connections, Inc., 286 AD2d 433, 433-434 [2d Dept 2001], citing Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382). As MoneyGram has tacitly admitted in it's motion that the money orders are valid and enforceable contracts with the plaintiff, the plaintiff is precluded from proceeding on a quasi-contract theory of unjust enrichment because the money orders explicitly cover the same subject matter for which the plaintiff seeks relief in it's unjust enrichment cause of action ( see Hamlet, 64 AD3d at 115; Clark-Fitzpatrick, 70 NY2d at 382). Accordingly, MoneyGram's motion to dismiss the fourth cause of action for unjust enrichment is granted.
Plaintiff's amended complaint demands punitive damages against MoneyGram. However, "punitive damages are not recoverable in an ordinary breach of contract case, as their purpose is not to remedy private wrongs but to vindicate public rights" ( Tartaro v Allstate Indem. Co. , 56 AD3d 758 [2d Dept 2008]; see Goldsmith Motors Corp. v Chemical Bank , 41 AD3d 648, 649 [2d Dept 2007]; New York Univ. v Continental Ins. Co., 87 NY2d 308, 316). As the complaint does not allege that MoneyGram's alleged conduct is part of a pattern directed at the public and "the wrong of which [the plaintiff] complains is essentially private rather than public", plaintiff's demands for punitive damages are stricken ( Goldsmith Motors, 41 AD3d at 649; see New York Univ., 87 NY2d at 316).
Plaintiff's amended complaint demands attorney's fees for the litigation of this action. However, "[t]he American Rule provides that attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule'" ( Baker v Health Mgmt. Sys., 98 NY2d 80, 88, citing Hooper Associates, Ltd. v AGS Computers, Inc., 74 NY2d 487, 491). As the plaintiff has failed to indicate any agreement, statute or court rule that would allow plaintiff to recover attorney's fees, plaintiff's demands for attorney's fees are stricken.
CONCLUSION
Accordingly, defendant's motion to dismiss the second, third and fourth causes of action, and strike plaintiff's demands for punitive damages and attorney's fees is granted.
Further, plaintiff is directed to serve and file an amended complaint to designate "Sunday Anyika doing business as Freightmate International", as the plaintiff in this action within 30 days of this decision.
This constitutes the decision and order of the court.