Saunders v. AOL Time Warner, Inc., 18 A.D.3d 216 (N.Y. App. Div. 2005). · Go Syfert
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Saunders v. AOL Time Warner, Inc., 18 A.D.3d 216 (N.Y. App. Div. 2005). Cases Citing This Book View Copy Cite
“in the absence of a confidential or fiduciary relationship, plaintiffs have no cause of action for an accounting.”
18 citation events (18 in the last 25 years) across 5 distinct courts.
Strongest positive: Hector v. Johnson (nysd, 2023-09-15)
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Hector v. Johnson
S.D.N.Y. · 2023 · signal: see · quote attribution · 1 verbatim quote · confidence high
in the absence of a confidential or fiduciary relationship, plaintiffs have no cause of action for an accounting.
discussed Cited as authority (rule) NGH Group, Inc. v. Butler
nysuffolkctyct · 2025 · confidence medium
In the absence of a fiducia relationship, Butler has no cause of action for an accounting (see Saunde s v AOL Time Warner, 18 AD3d 216, 217 [1st Dept 2005]; JRAP Enters. v Z caro Constr. , LLC, 2021 NY Misc.
discussed Cited as authority (rule) Ull v. Royal Car Park LLC
N.Y. App. Div. · 2020 · confidence medium
There is no evidence that Jeffrey, who did not manage the LLCs, has any fiduciary relationship to plaintiff [*2]( Saunders v AOL Time Warner, Inc. , 18 AD3d 216, 217 [1st Dept 2005]; see Unitel Telecard Distrib.
discussed Cited as authority (rule) Giffuni v. Towler (2×)
N.Y. Sup. Ct. · 2019 · confidence medium
Constructive Trust and Accounting In the absence of a fiduciary relationship, the plaintiff has no cause of action for an accounting or a constructive trust ( see , Saunders v AOL Time Warner , 18 AD3d 216, 217).
discussed Cited as authority (rule) Stevens v. Kellar
N.Y. App. Div. · 2013 · confidence medium
As plaintiff failed to tender sufficient admissible proof to raise a question of fact as to whether Kellar was acting within the scope of his employment at the time of the altercation with plaintiff, the Town was entitled to summary judgment dismissing plaintiffs vicarious liability claims against it (see Danner-Cantalino v City of New York, 85 AD3d at 710 ; Perez v City of New York, 79 AD3d 835, 836-837 [2010]; Pungello v City of New York, 18 AD3d 216, 216 [2005]; Seymour v Gateway Prods., 295 AD2d 278, 278 [2002]; cf. Campos v City of New York, 32 AD3d at 290-291 ; Lucey v State of New York,…
discussed Cited as authority (rule) Stevens v. Kellar
N.Y. App. Div. · 2013 · confidence medium
As plaintiff failed to tender sufficient admissible proof to raise a question of fact as to whether Kellar was acting within the scope of his employment at the time of the altercation with plaintiff, the Town was entitled to summary judgment dismissing plaintiffs vicarious liability claims against it (see Danner-Cantalino v City of New York, 85 AD3d at 710 ; Perez v City of New York, 79 AD3d 835, 836-837 [2010]; Pungello v City of New York, 18 AD3d 216, 216 [2005]; Seymour v Gateway Prods., 295 AD2d 278, 278 [2002]; cf. Campos v City of New York, 32 AD3d at 290-291 ; Lucey v State of New York,…
discussed Cited as authority (rule) Barton v. City of New York
N.Y. Sup. Ct. · 2007 · confidence medium
(See, for example, Campos v City of New York, 32 AD3d 287, 291-292 [1st Dept 2006]; Pungello v City of New York, 18 AD3d 216, 216 [1st Dept 2005]; White v Thomas, 12 AD3d 168, 168 [1st Dept 2004]; Seymour v Gateway Prods., 295 AD2d 278, 278 [1st Dept 2002]; Johnson v City of New York, 269 AD2d 359, 359-360 [2d Dept 2000].) The difficulty here is that, despite the City’s assertion, neither plaintiff in his section 50-h testimony nor Rossler in his affidavit states that the shooting occurred as a result of a private dispute between them or between Rossler and a third person, nor does either te…
discussed Cited as authority (rule) Samuel v. Time Warner, Inc.
N.Y. Sup. Ct. · 2005 · confidence medium
Co. of Am,., 94 NY2d 330, 348 [1999]).” (Saunders v AOL Time Warner, Inc., 18 AD3d 216, 217 [1st Dept 2005].) Plaintiff Kimberly Brissenden alleges that she was a basic cable customer of TWCNYC for approximately one year, renting two converter boxes and two remotes, even though she owned a cable-ready television set and a compatible remote.
discussed Cited "see" Stillwater Liquidating LLC v. Net Five at Palm Pointe, LLC (In re Stillwater Asset Backed Offshore Fund Ltd.) (2×)
Bankr. S.D.N.Y. · 2016 · signal: see · confidence high
See,. e.g., Saunders v. AOL Time Warner, Inc., 18 A.D.3d 216 , 794 N.Y.S.2d 342, 344 (2005) (finding that subscribers had no cause of action for accounting, or for imposition of constructive trust against cable television company, in absence of confidential or fiduciary relationship).
Retrieving the full opinion text from the archive…
Kimberly Saunders
v.
AOL Time Warner, Inc.
Appellate Division of the Supreme Court of the State of New York.
May 3, 2005.
18 A.D.3d 216
2005 N.Y. App. Div. LEXIS 4762
Cited by 9 opinions  |  Published

[*217] Order, Supreme Court, New York County (Helen E. Freedman, J.), entered on or about February 11, 2004, which granted defendant’s motion to dismiss the class action complaint, without prejudice to a new or amended complaint against Time Warner Cable of New York City (TWCNYC) based on plaintiffs’ General Business Law claims, unanimously affirmed, with costs.

The complaint in this action, alleging that defendant’s subsidiary TWCNYC failed to afford its subscribers adequate notice of the circumstance that access to Basic service cable television programming does not require rental of a cable converter box, should have been filed against TWCNYC, and not defendant.

In any event, plaintiff Linda Saunders was not a proper plaintiff. Inasmuch as she was a subscriber to TWCNYC’s Standard cable service, an upgrade over Basic service, and regularly purchased pay-per-view programming, both of which services require a cable box, she was not aggrieved by the complained-of conduct; only Basic subscribers who rented cable boxes as to which a claim of superfluousness might be made would be proper plaintiffs.

Moreover, with the exception of plaintiffs’ General Business Law causes, which are not here at issue, plaintiffs have not alleged legally cognizable claims. TWCNYC’s notice to subscribers, advising that cable boxes are not required to view Basic cable service if the subscriber has a cable-ready television or videocassette recorder, but at the same time recommending rental of the cable boxes to ensure optimum service, was in compliance with the relevant Federal Communications Commission regulation (47 CFR 76.1622 [b] [1]). Assuming without deciding that the representations in the notice are somewhat exaggerated, they do not amount to a predicate for a claim of fraud or negligent misrepresentation (see Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 348 [1999]). The viability of the negligent misrepresentation claim is also fatally impaired by the absence of any special relationship (see Andres v LeRoy Adventures, 201 AD2d 262 [1994]). Nor do plaintiffs state any claim for breach of contract, and the absence of misconduct rising to the level of fraud defeats plaintiffs’ claim that they were fraudulently induced into renting cable boxes (see Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 407 [1958]). The existence of the valid and enforceable cable subscriber contracts defeats the unjust enrichment cause of action (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]), and, in the absence of a confidential or fiduciary relationship, plaintiffs have no cause of action for an accounting (see Palazzo v Palazzo, 121 AD2d 261, 265 [1986]), or for imposi[*218] tion of a constructive trust (see Sharp v Kosmalski, 40 NY2d 119, 121 [1976]).

The court’s decision to dismiss plaintiff Kimberly Saunders’ General Business Law § 349 claim without prejudice and to allow her to commence a new or amended action against the proper defendant, TWCNYC, which she has already done, rather than amending the caption on the instant complaint was proper.

We have considered plaintiffs’ remaining contentions and find them unavailing. Concur—Tom, J.E, Saxe, Friedman, Marlow and Catterson, JJ.