green
Positive treatment
Hot · 140 in 5y
Doctrinal family: Oswego Laborers' Local 214 Pensi… ↗
Issue: element of the statutory claimNY ↗
Quoted verbatim 4×
95.5 score
G Cite
cited 12× by 12 distinct cases, 2014–2025 · 3 courts→ Stable ·
…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.
at p. 941
✓
Topic ↗
cited 4× by 4 distinct cases, 2015–2021→ Stable ·
…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
at p. 941
✓
Topic ↗
Treatment trajectory · 2012 → 2026 · click a year to view as-of
2012
2019
2026
Top citers, strongest first. 50 distinct citers.
How cited ↗
examined
Cited as authority (verbatim quote)
Fishon v. Peloton Interactive, Inc.
(3×)
also: Cited "see", Cited "see, e.g."
to the extent that the appellate division order imposed a reliance requirement on general business law 349 and 350 claims, it was error. justifiable reliance by the plaintiff is not an element of the statutory claim.
examined
Cited as authority (verbatim quote)
Koch v. Greenberg
(3×)
also: Cited as authority (quoted)
disclaimers set forth in defendant's catalogs do not bar claims for deceptive trade practices.
examined
Cited as authority (quoted)
Boateng v. BMW of North America, LLC
to the extent that the appellate division order imposed a reliance requirement on general business law 349 and 350 claims, it was error. justifiable reliance by the plaintiff on the misrepresentation or omission is not an element of the statutory claim.
examined
Cited as authority (quoted)
Kommer v. Bayer Consumer Health
(3×)
to the extent that the appellate division order imposed a reliance requirement on general business law 349 and 350 claims, it was error. justifiable reliance by the plaintiff is not an element of the statutory claim.
discussed
Cited as authority (rule)
Drake v. Bayer Healthcare LLC
To succeed on a claim under the relevant sections of the GBL, “the plaintiff must show that the defendant ‘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.’” Id. (quoting Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675, 675 (N.Y. 2012)).
discussed
Cited as authority (rule)
Seungook Kong v. Laundress, LLC.
(See Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 NY3d 169 , 176 [2021]; Koch v Acker, Merrall & Condit Co., 18 NY3d 940, 941 [2012].) Punitive Damages Punitive damages "may not be awarded absent sustainable compensatory damages" (Rivera v City of New York, 40 AD3d 334, 344 [1st Dept 2007]), as "punitive damages 'are merely an element of the total claim for damages on ... underlying causes of action."' (Jean, 163 AD3d at 498, quoting Greenview Trading Co. v Hershman & Leicher, 108 AD3d 468 [1st Dept 1985].) As such, where a plaintiff interposes a sep…
discussed
Cited as authority (rule)
Great American Alliance Insurance Company v. Greater New York Mutual Insurance Company, individually as an assignee of Madison 79 Associates, Inc. and Fabian Vinicio Sanchez
Great American responds that GNY has failed to state a claim because it fails to allege “(1) consumer-oriented conduct, that is (2) materially misleading, and that (3) the plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012).
discussed
Cited as authority (rule)
Joe Lieber, Karen Elizabeth Harms, and Darin Strauss, Individually and On Behalf of All Others Similarly Situated v. Igloo Products Corp.
G.B.L. prohibits “[f]alse advertising in the conduct of any business, trade or commerce[.]” To state a claim under either statute, 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.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 944 (2012)).
discussed
Cited as authority (rule)
Gracie Baked LLC, WeCare RG, Inc., and Millercobb LLC, on behalf of themselves and all others similarly situated v. Giftrocket, Inc., Tremendous, Inc., Nicholaus Baum, Kapil Kale, Jonathan Pines, Benjamin Kubic, Sunrise Banks, N.A., Giftrocket, LLC, Tremendous LLC, and Tremendous Parent, Inc.
To state a claim under either section, “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.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2009)).
discussed
Cited as authority (rule)
Christine Morales, Vanessa Williams, and Carly Charalambou v. SportsEngine, Inc.
“To successfully assert a claim under either section, ‘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.’” Orlander, 802 F.3d at 300 (quoting Koch v. Acker, Merrall & Condit Co., 944 N.Y.S.2d 452, 452 (2012)).
discussed
Cited as authority (rule)
Gregory v. Boston Scientific Corporation
To state a claim under NYGBL § 349, “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.” Orlander v, Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 944 (N-Y. 2012)).
discussed
Cited as authority (rule)
Salter v. Meta Platforms, Inc.
Plaintiffs sufficiently alleged that " '[MEAN] has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff[s] suffered injury as a result of the allegedly deceptive act or practice' " ( Koch v Acker, Merrall & Condit Co. , 18 NY3d 940, 941 [2012]; see Karlin v IVF Am. , 93 NY2d 282, 293 [1999], rearg denied 93 NY2d 989 [1999]).
discussed
Cited as authority (rule)
Del Rosario v. Sazerac Company, Inc.
“To successfully assert a claim under either section, ‘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.’” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675, 675 (N.Y. 2012)).
examined
Cited as authority (rule)
Rothman v. Hasz Project Management and Design
(3×)
G.B.L., “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) [the] plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940 , 944 N.Y.S.2d 452 , 967 N.E.2d 675, 675 (2012)); see also Crawford v. Franklin Credit Mgmt.
discussed
Cited as authority (rule)
Cobovic v. Mars Petcare US, Inc.
GBL prohibits “[f]alse advertising in the conduct of any business, trade or commerce[.]” To state a claim under either statute, 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.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 944 (2012)).
discussed
Cited as authority (rule)
Montgomery v. Props2Fantasy.com
That statute applies when a defendant “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” (Koch v Acker, Merrall & Condit Co., 18 NY3d 940, 941 [2012] [internal citations and quotations omitted]).
discussed
Cited as authority (rule)
Shaw v. Props2Fantasy.com
That statute applies when a defendant "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" (Koch v Acker, Merrall & Condit Co., 18 NY3d 940, 941 [2012] [internal citations and quotations omitted]).
discussed
Cited as authority (rule)
Rausch v. Props2Fantasy.com
That statute applies where a defendant “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” (Koch v Acker, Merrall & Condit Co., 18 NY3d 940, 941 [2012] [internal citations and quotations omitted]).
cited
Cited as authority (rule)
Archdiocese of N.Y. v. Century Indem. Co.
However, “[j]ustifiable reliance by the plaintiff is not an element of the statutory claim” (Koch v Acker, Merrall & Condit Co., 18 NY3d 940, 941 [2012] [emphasis added]).
discussed
Cited as authority (rule)
Annabi v. New York University
“To successfully assert a claim under General Business Law § 349(h) or § 350, a plaintiff must allege that a defendant has engaged in (1) consumer- oriented conduct that is (2) materially misleading and that (3) plaintiff suffered 1 Annabi does not appear to challenge the district court’s dismissal of his claim under the Communications Act of 1934, 47 U.S.C. § 509 , so we do not address it. 4 injury as a result of the allegedly deceptive act or practice.” Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012) (internal quotation marks and citation omitted).
discussed
Cited as authority (rule)
Afriyie v. NBCUniversal Media, LLC
To state a 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.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012)).
discussed
Cited as authority (rule)
Clemmons v. Flora Food US Inc.
To successfully assert a claim under either section, the plaintiff must prove “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.” Orlander v. Staples, 802 F.3d 289, 300 (2d Cir. 2015) (citing Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 944 (2012)).
discussed
Cited as authority (rule)
Ahmed Ashour v. Arizona Beverages USA LLC
GBL §§ 349 and 350 GBL § 349(a) outlaws “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in [New York].” GBL § 350 prohibits “[f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service in [New York].” To succeed on a claim under either section, a plaintiff must demonstrate that a defendant “engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) [the] plaintiff suffered injury as a result of the allegedly deceptive act or practice.” …
discussed
Cited as authority (rule)
Der Boghossian v. Capella University, LLC
To state a claim under either section, “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) [the] plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012) (internal quotation marks and citations omitted).
discussed
Cited as authority (rule)
Ward v. Pepperidge Farm, Inc.
To state a cognizable claim for deceptive practices under either section, a plaintiff must show that the act or practice constitutes “(1) consumer- oriented conduct that is (2) materially misleading and that (3) plaintiff suffered [an] injury as a result of the deceptive act or practice.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (citing Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675, 675 (N.Y. 2012)).
discussed
Cited as authority (rule)
Newman v. Bayer Corporation
Additionally, neither Section 349 nor 350 requires proof of reliance, see Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (N.Y. 2012), nor proof that defendants intended to mislead consumers, see Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 26 (N.Y. 1995).
discussed
Cited as authority (rule)
La Rosa v. Abbott Laboratories
To successfully assert a claim under either of these sections, “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.” Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012).
discussed
Cited as authority (rule)
Goetz v. Ainsworth Pet Nutrition, LLC
“To successfully assert a claim under either section, ‘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.’” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012)); see also Goshen v. Mut.
discussed
Cited as authority (rule)
Sullivan v. Aircraft Services Group, Inc.
BRODIE United States District Judge consumer-oriented conduct that is (2) materially misleading and that (3) [the] plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (citing Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 944 (2012)); see Bates v. Abbott Lab’ys, No. 24-919, 2025 WL 65668 , at *1 (2d Cir. Jan. 10, 2025) (same).
discussed
Cited as authority (rule)
Brockington v. Dollar General Corporation
“To successfully assert a claim under either section, ‘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.’” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675, 675 (N.Y. 2012)); see also Goshen v. Mut.
discussed
Cited as authority (rule)
Taylor v. Reckitt Benckiser Pharmaceuticals, Inc.
To successfully assert a claim under either Section 349 or 350, “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.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675, 675 (N.Y. 2012)).
examined
Cited as authority (rule)
In Re Pacific Market International, LLC, Stanley Tumbler Litigation
(3×)
also: Cited "see"
“To succeed on a claim under § 349 or § 350, the plaintiff 16 must show that the defendant ‘engaged in (1) consumer-oriented conduct that is (2) materially 17 misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or 18 practice.’” Id. (quoting Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675, 675 (N.Y. 2012)). 19 As to deceptive statements, Defendant argues that Plaintiffs do not identify a false 20 statement by Defendant, do not allege that any true statements were misleading, and do not 21 allege that Plaintiffs relied on any statements in …
discussed
Cited as authority (rule)
Del Rosario v. Sazerac Company, Inc.
“To successfully assert a claim under either section, ‘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.’” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675, 675 (N.Y. 2012)).
discussed
Cited as authority (rule)
Hartnett v. Liberty Mutual Holding Company, Inc. d/b/a Liberty Mutual Insurance
To successfully assert a 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.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (citing Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (N.Y. 2012)).
cited
Cited as authority (rule)
Cohen v. eSupplements, LLC
“Justifiable reliance by the plaintiff is not an element of [either] statutory claim.” Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675, 676 (N.Y. 2012); see also Eidelman v. Sun Prod.
discussed
Cited as authority (rule)
Mary Beth Montera v. Premier Nutrition Corporation
(2×)
PREMIER NUTRITION CORP. oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675, 675 (N.Y. 2012) (citation omitted).
discussed
Cited as authority (rule)
Yodice v. Touro Coll. & Univ. Sys.
To state a claim under either section, “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.” Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012) (internal quotation marks omitted).
discussed
Cited as authority (rule)
Hofmann v. Long Island Univ.
To state a claim under either section, “‘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.’” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012)).
discussed
Cited as authority (rule)
EDDW LLC v. BANK OF AMERICA, N.A.
Count VI: Violation of New York General Business Law, § 349 To state a claim under Section 349, “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct, that is (2) materially misleading, and that (3) the plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012) (internal citation omitted); N.Y.
discussed
Cited as authority (rule)
Tapinekis v. Pace University
To state a claim under either section, “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.” Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012).
examined
Cited as authority (rule)
Sheiner v. Supervalu Inc.
(4×)
To state a claim under either Section 349 or 350 of the GBL, “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) [the] plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940 , 944 N.Y.S.2d 452 , 967 N.E.2d 675, 675 (2012)); see also Crawford v. Franklin Credit Mgmt.
examined
Cited as authority (rule)
Duncan v. Kahala Franchising, L.L.C.
(4×)
also: Cited "see, e.g."
To state a claim under either section, “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.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2009)).
discussed
Cited as authority (rule)
Troy v. American Bar Association
G.B.L. § 349 , “a plaintiff must allege that a defendant has engaged in (1) consumer-ori- ented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (citing Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012)).
discussed
Cited as authority (rule)
Kelly v. Kasim International Corporation
“To successfully assert a claim under either section, ‘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.’” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675, 675 (N.Y. 2012)); see also Goshen v. Mut.
discussed
Cited as authority (rule)
Kandel v. Dr. Dennis Gross Skincare, LLC
To state a claim under either section, “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.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675, 675 (N.Y. 2012)).
discussed
Cited as authority (rule)
Carovillano v. Sirius XM Radio, Inc.
Sept. 26, 2016) (cleaned up); see also Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (treating the causes of action as identical); Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012) (same).2 2.
discussed
Cited as authority (rule)
Noriega v. Abbott Laboratories
Discussion To state a claim under NYGBL § 349 or § 350, “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.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 944 N.Y.S.2d 452, 452 (2012)).
discussed
Cited as authority (rule)
McCracken v. Verisma Systems, Inc. Carter v. Rochester General Hospital
In doing so, we draw all reasonable inferences in the plaintiff’s favor to assess whether a complaint’s factual allegations plausibly give rise to an entitlement to relief.” Id. (internal quotation marks omitted). 8 A. New York General Business Law § 349 Claim Section 349(a) of the New York General Business Law makes unlawful “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.” To state a claim under this provision, “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) ma…
discussed
Cited as authority (rule)
Gordon v. Santander Consumer USA, Inc.
The Court understands Plaintiff, however, to be asserting a claim under both subsection (a) and (b). 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.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 944 N.Y.S.2d 452, 452 (2012)).
examined
Cited as authority (rule)
Velez v. Lasko Products, LLC
(4×)
To state a claim under either Section 349 or 350 of the GBL, “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) [the] plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 967 N.E.2d 675, 675 (N.Y. 2012)).
William I. Koch, Appellant,
v.
Acker, Merrall & Condit Company, Respondent
v.
Acker, Merrall & Condit Company, Respondent
117 SSM 13.
New York Court of Appeals.
Mar 27, 2012.
967 N.E.2d 675
APPEARANCES OF COUNSEL, Hunton & Williams LLP, New York City (Joseph J. Saltarelli, Shawn Patrick Regan and Jennifer L. Cummins of counsel), and Irell & Manella LLP, Newport Beach, California (Bruce A. Wessel, John Hueston and Moez M. Kaba of counsel), for appellant., Meister Seelig & Fein LLP, New York City (Stephen B. Meister, Thomas L. Friedman and Remy J. Stocks of counsel), for respondent., Theodore Hadzi-Antich and Deborah J. La Fetra, Sacramento, California, for Pacific Legal Foundation, amicus curiae.
Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones Concur in Memorandum Judge Smith Taking No Part.
Cited by 209 opinions | Published
OPINION OF THE COURT
Memorandum.
The judgment of Supreme Court appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and defendant’s motion to dismiss plaintiffs General Business Law §§ 349 and 350 causes of action denied. To successfully assert a claim under General Business Law § 349 (h) or § 350, “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” (City of New York v Smokes-Spirits.Com, Inc., 12 NY3d 616, 621 [2009]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 324 n 1 [2002]). Here, plaintiff sufficiently pleaded such causes of action, and the disclaimers set forth in defendant’s catalogs “do not . . . bar [plaintiffs] claims for deceptive trade practices at this stage of the proceedings, as they do not establish a defense as a matter of law” (Goshen, 98 NY2d at 326; see Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 345 [1999]).
To the extent that the Appellate Division order imposed a reliance requirement on General Business Law §§ 349 and 350 claims, it was error. Justifiable reliance by the plaintiff is not an element of the statutory claim (see Small v Lorillard Tobacco [*942] Co., 94 NY2d 43, 55 [1999], citing Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 26 [1995]).
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur in memorandum; Judge Smith taking no part.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), judgment appealed from and order of the Appellate Division brought up for review reversed, etc.