Oxman v. Amoroso

8 Citing cases

  1. Scarcella v. America Online

    2004 N.Y. Slip Op. 51021 (N.Y. Civ. Ct. 2004)

    Id., 734 N.Y.S.2d at 394-396. In Oxman v. Amoroso, 172 Misc.2d 773, 659 N.Y.S.2d 963 (Yonkers City Ct. 1997), the court likewise denied a motion to dismiss a Small Claims action based on a forum-selection clause in the contract between the claimant and a Utah company that contracted to provide a suitable "au pair" to care for the claimant's children: Small Claims parts have been established in courts outside New York City by legislative language essentially identical to Civil Court Act §§ 1801 et seq.

  2. Federal Trade Commission v. Crescent Publishing Group

    129 F. Supp. 2d 311 (S.D.N.Y. 2001)   Cited 33 times
    Finding that harm was not reasonably avoidable where billing statements did not in some instances make clear what customers were being billed for, who was billing them, or how to contest the charges

    In order to prevail under Section 349, the state must demonstrate only that a consumer-oriented act or practice was misleading in a material respect and that an injury to the plaintiff resulted from such act or practice. See Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 24-25, 623 N.Y.S.2d 529, 532-33, 647 N.E.2d 741 (1995); McGill v. General Motors Corp., 231 A.D.2d 449, 647 N.Y.S.2d 209, 210 (1st Dept. 1996). There is no requirement of justifiable reliance, see Oswego Laborers' Local 214, 85 N.Y.2d at 26, 623 N.Y.S.2d at 533, 647 N.E.2d 741, or of fraudulent intent or recklessness on the part of the defendants, see Oxman v. Amoroso, 172 Misc.2d 773, 782-83, 659 N.Y.S.2d 963 (1997). Section 350 prohibits "[f]alse advertising in the conduct of any business, trade or commerce" or in providing services in New York. An advertisement is false if it is "misleading in a material respect," taking into account "not only representations made by statement, word, design, device, sound or any combination thereof, but also the extent to which the advertising fails to reveal facts material in the light of such representations."

  3. Licensed Practical Nurses v. Ulysses Cruises

    131 F. Supp. 2d 393 (S.D.N.Y. 2000)   Cited 63 times   1 Legal Analyses
    Holding that the one-year limitation provision in a ticket contract applied to the plaintiff's claim that the cruise line breached its agreement and warranty to provide a safe and reasonable environment, and emphasizing that the provision did not limit its application based on the nature of the lawsuit

    Although both New York and Florida courts seem to accept the rule of The Bremen, it is entirely possible that those jurisdictions might be persuaded by the critics who find Carnival Cruise Lines not to follow from that rule. See, e.g., Oxman v. Amoroso, 659 N.Y.S.2d 963, 967 (City Ct. Yonkers 1997) (refusing to apply forum-selection clause in form consumer contract). Since this case is governed by maritime law in any event, there is no need to speculate further on this possibility.

  4. Forrest v. Verizon Commmunications, Inc.

    805 A.2d 1007 (D.C. 2002)   Cited 47 times
    Holding that adequate notice was provided of clickwrap agreement terms where users had to click "Accept" to agree to the terms in order to subscribe, an admonition in capital letters was presented at the top of the agreement to read the agreement carefully, the thirteen-page agreement appeared in a scroll box with only portions visible at a time, and the forum selection clause was located in the final section and presented in lower case font

    See Vitricon, Inc. v. Midwest Elastomers, Inc., 148 F. Supp.2d 245, 247 (E.D.N.Y. 2001) ("fine print" acceptable for forum selection clause); Caspi v. Microsoft Network, L.L.C., 732 A.2d 528, 532 (N.J.Super.Ct. A.D. 1999). But see Oxman v. Amoroso, 659 N.Y.S.2d 963, 967 (N.Y. City Ct. 1997). Neither is the use of a "scroll box" in the electronic version that displays only part of the Agreement at any one time inimical to the provision of adequate notice.

  5. Full House v. Auto Liferx

    31 Misc. 3d 64 (N.Y. App. Term 2011)   Cited 2 times

    ( LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395 [2006]; accord Bernstein v Wysoki, 77 AD3d 241 [2010]; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736 [2007]; see also Brooke Group v JCH Syndicate 488, 87 NY2d 530 [1996].) A just basis for denying enforcement of a forum selection clause may be found where the costs and inconvenience of litigating in a foreign forum would, for all intents and purposes, deprive the litigant of his day in court ( see Scarcella v America Online, Inc., 11 Misc 3d 19 [App Term, 1st Dept 2005]; see also Strujan v AOL, 12 Misc 3d 1160[A], 2006 NY Slip Op 50981[U] [Civ Ct, NY County 2006] [in an action for $2,500, sustaining jurisdiction in New York despite a forum selection clause contained in an Internet service agreement which mandated jurisdiction in Virginia]; Oxman v Amoroso, 172 Misc 2d 773, 780 [Yonkers City Ct 1997]). Here, concluding that enforcement of the forum selection clause of the warranty agreement would improperly chill or extinguish plaintiffs claims thereunder, and noting too the significant public policy interest in the enforceability of warranties, we find that the District Court properly denied appellant's motion to the extent that it sought an order compelling that the venue of the arbitration be Maricopa County, Arizona.

  6. Miller v. Kaminer

    62 Misc. 3d 397 (N.Y. Civ. Ct. 2018)   Cited 3 times

    Ct. Richmond Cty. 2011) surmised that an individual defendant can be held personally liable when s/he allows a corporation to dissolve when contractual and statutory obligations still existed because it could amount to a deceptive act or practice under GBL § 349. The court in Oxman v. Amoroso , 172 Misc.2d 773, 659 N.Y.S.2d 963 [City Ct. 1997] found that the plaintiff established its prima facie GBL § 349 burden where an au pair agency promised but failed to provide properly trained au pairs. The Court in Corsello v. Verizon N.Y., Inc. , 77 A.D.3d 344, 365, 908 N.Y.S.2d 57 [2d Dept. 2010], held:

  7. Bongo-Astier v. Carefree Lifestyles, Inc.

    2010 N.Y. Slip Op. 50673 (N.Y. Civ. Ct. 2010)

    A contractual forum selection clause is enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in a selected forum would effectively deprive a party of her day in court.See also, DeSola Group, Inc. v Coors Brewing Co., 199 AD2d 141 (1st Dept 1993) ("[as] plaintiff's allegations of fraud pervading the Agreement would render the entire Agreement void, the forum selection clause contained therein is unenforceable"); Oxman v Amoroso, 172 Misc 2d 773, 780 (Yonkers City Ct, 1997) (court refused to "allo[w] defendant to solicit and sell its services in New York State while at the same time chilling and extinguishing meritorious claims by forcing injured consumers to bring suit in a distant and economically inaccessible forum"). As stated in Oxman, "Forum selection clauses are among the most onerous and overreaching of all clauses that may appear in consumer contracts.

  8. Griffin-Amiel v. Frank Terris Orchestras

    178 Misc. 2d 71 (N.Y. City Ct. 1998)   Cited 8 times
    Wedding singer

    The substituted wedding singer, Tony Avena, was by no means equivalent to Paul Rich. The defendant has breached its contract in a material respect by failing to produce Paul Rich ( see, e.g., Deitsch v. The Music Co., supra, 6 Ohio Misc.2d 6, 453 N.E.2d, at 1303 [wedding band]; Sagnia-Blythe v. Gamblin, supra [bridesmaid dresses]; Garther v. Tipery Studios, 334 So.2d, supra, at 761 [wedding photos]) and by failing to verify and confirm that Paul Rich would and could honor defendant's contractual promises to the plaintiff ( see, e.g., Oxman v. Amoroso, 172 Misc.2d 773 [failure to verify au pair's work experience]; Pellegrini v. Landmark Travel Group, 165 Misc.2d 589 [failure to verify or confirm tour operator's refund provisions]). Disclaimer Void