MEMORANDUM AND ORDER
A. KATHLEEN TOMLINSON, United States Magistrate Judge:
Plaintiff Gabrielle Douyon ("Plaintiff" or "Douyon") has brought this lawsuit on the basis of alleged unfair, abusive and deceptive practices utilized by the Defendants in their attempt to collect an alleged medical debt from the Plaintiff. Am. Compl. ¶ 2. As a First Cause of Action, Plaintiff asserts claims for violations of various provisions of the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. against Defendant Seymour (a.k.a. Sy) Schneider ("Schneider") only. The following claims are asserted against all Defendants: Deceptive Acts and Practices Unlawful in Violation of New York General Business Law ("NY GBL") § 349 (Second Cause of Action), Intentional Infliction of Emotional Distress (Third Cause of Action), and Slander (Fourth Cause of Action). Plaintiff also asserts claims for Negligent Hiring, Retention, Training, and Supervision (Fifth Cause of Action) and Negligence (Sixth Cause of Action) against Defendants N.Y. Medical Health Care, P.C. ("NY Medical") and Faraidoon Daniel Golyan, M.D. ("Dr. Golyan"). Both parties have moved for summary judgment. Plaintiff seeks partial summary judgment for certain violations of the FDCPA by Defendant Schneider and for certain violations of N.Y. GBL § 349 by all Defendants. Defendants seek summary judgment on Plaintiff's N.Y. GBL § 349 claim as well as her intentional infliction of emotional distress and negligence claims. Defendants also seek summary judgment on the issue of whether N.Y. Medical can be held vicariously liable for Schneider's acts.
The parties submitted the following documents in connection with Plaintiff's motion for summary judgment: Plaintiff's Memorandum of Law [DE 72-19] ("Pl's Mem."); Plaintiff's Rule 56.1 Statement [DE 72-1] ("Pl's. Stmt."); Defendants' Memorandum of Law in Opposition [DE 73] ("Defs.' Opp. Mem.") with Exhibits [DE 75]; Defendants' Rule 56.1 Counterstatement [DE 73-1] ("Defs.' Counterstmt."); Plaintiff's Reply Memorandum of Law [DE 74] ("Pl's Reply Mem."); and the Declaration of Daniel A. Schlanger, Esq. [DE 72-2] ("Schlanger Decl.") with Exhibits. In connection with Defendants' motion, the Court reviewed and considered the following: Defendants' Memorandum of Law [DE 68-1] ("Defs.' Mem."), Defendants' Rule 56.1 Statement [DE 68-2] ("Defs.' Stmt.") with Exhibits; Plaintiff's Memorandum of Law in Opposition [DE 70] ("Pl's. Opp. Mem."); Plaintiff's Rule 56.1 Counterstatement and Statement of Additional Facts [DE 69] ("Pl's. Counterstmt.");
The following undisputed facts are drawn from the parties' Rule 56.1 Statements and the Stipulated Facts set forth in the Proposed Joint Pre-Trial Statement signed by both parties [DE 60] ("Pre-Trial Stmt."). In considering a motion for summary judgment, the Court construes the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 n. 1 (2d Cir.2005).
A. The Parties
Plaintiff Gabrielle Douyon is a resident of Elmont New York. See Defs.' Counterstmt. ¶ 1. Douyon is a "consumer" as that term is defined under the FDCPA. Id. ¶ 2.
Defendant N.Y. Medical is a cardiology practice with principal places of business in Great Neck, New York and Forest Hills, New York. Id. ¶ 3. Defendant Kourosh Golyan, a.k.a. David Golyan ("David Golyan"), is the office manager of N.Y. Medical and oversees its collection activities. Id. ¶ 4. Defendant Faraidoon Daniel Golyan, M.D. ("Dr. Golyan") is a licensed medical doctor and co-owner of N.Y. Medical. Pre-Trial Stmt. ¶ 3.
Defendant Schneider has worked as a freelance debt collector since 2009. Defs.' Counterstmt. ¶ 15. NY Medical retained Schneider's services in connection with its attempt to collect a debt from Plaintiff. Id. ¶ 13.
B. Douyon's Surgery and the Alleged Debt
On or about September 24, 2009, the Plaintiff was admitted to North Shore Hospital in Westbury, New York for emergency heart surgery. Am. Compl. ¶ 24. The Plaintiff's cardiologist did not have admitting privileges at North Shore Hospital at that time. Id. ¶ 25. As a result, Dr. Golyan performed emergency heart surgery on Plaintiff. See Defs.' Counterstmt. ¶ 5; Pre-Trial Stmt. ¶ 4. Dr. Golyan also saw Plaintiff in the hospital and in the offices of N.Y. Medical after her surgery. Defs.' Counterstmt. ¶ 5. Plaintiff continued to receive treatment from Dr. Golyan for approximately nine months, up until June 2010. Am. Compl. ¶ 27.
NY Medical negotiated with Plaintiff's employer and the employer's third-party benefits administrators to reduce Plaintiff's N.Y. Medical bill from $76,587 to $40,000. Pre-Trial Stmt. ¶ 5. Plaintiff's insurer, Empire Blue Cross/Blue Shield ("Empire"), paid $34,000 of that bill to N.Y. Medical directly. Defs.' Counterstmt. ¶ 7. Empire also sent Plaintiff a check for approximately $5,000 in early
C. Defendants' Debt Collection Attempts
NY Medical retained the services of Defendant Seymour Schneider to collect Plaintiff's debt. Defs.' Counterstmt. ¶ 13. NY Medical employed Schneider on multiple occasions to collect debts owed by its patients and compensated him by paying him a percentage of the funds he collected from debtors. Pl's. Counterstmt. ¶ 6; Defs.' Counterstmt. ¶ 17.
At some point in the summer of 2010, Schneider visited Douyon's place of work and discussed with her the alleged debt she owed N.Y. Medical. Defs.' Counterstmt. ¶¶ 21-22. During that visit, Schneider discussed Plaintiff's alleged debt in the presence of Douyon's coworker, Donna Tucker. Id. ¶ 22. When Schneider departed Douyon's workplace after his initial visit, he left his business card. Id. ¶ 23. The business card depicts an American flag and bears the title "Financial Crimes Investigator" under Schneider's name. Id.
In connection with his debt collection efforts, Schneider left Plaintiff a message on her voicemail. See id. ¶ 25. The parties offer slightly different transcriptions of the message in their Rule 56.1 Statements. See id. However, in the "Stipulated Facts" section of the Joint Pre-Trial Statement, the parties agreed that Schneider left the following message:
Joint Pre-Trial Stmt. ¶ 18. Schneider never actually contacted the sheriff. Defs.' Counterstmt. ¶ 26.
In addition to Schneider's efforts, David Golyan sent Plaintiff letters on January 19, 2010 and March 15, 2010 which contained the following language:
See id. ¶ 8; Schlanger Aff., Ex. H. Plaintiff testified that she did not receive these letters. Defs.' Stmt. ¶ 11; Pl's. Counterstmt. ¶ 12.
The Amended Complaint alleges other debt collection activity by Defendants. However, only the undisputed facts are set forth in this section. To the extent that the other activity is relevant to this motion, that activity is discussed below.
STANDARD OF REVIEW
Fed.R.Civ.P. 56(a) dictates that a "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the initial burden of establishing the absence of any genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008). To determine whether the moving party has satisfied this burden, the Court is required to view the evidence and all factual inferences arising from that evidence in the light most favorable to the non-moving party. Doro v. Sheet Metal Workers' Int'l Ass'n, 498 F.3d 152, 155 (2d Cir.2007); Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir.2005).
Where the movant shows a prima facie entitlement to summary judgment, "the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact." Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir.2006). "[T]he nonmovant cannot rest on allegations in the pleadings and must point to specific evidence in the record to carry its burden on summary judgment." Id.; see also McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n. 4 (2d Cir.2006) ("[S]peculation alone is insufficient to defeat a motion for summary judgment."); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir.2001) ("Even where facts are disputed, in order to defeat summary judgment, the non-moving party must offer enough evidence to enable a reasonable jury to return a verdict in its favor."). Summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Dobbs v. Dobbs, No. 06-CV-6104, 2008 WL 3843528, at *5 (S.D.N.Y. Aug. 14, 2008) ("The Court's goal should be to isolate and dispose of factually unsupported claims....") (internal quotation marks omitted).
A. The FDCPA Claims
Although the Amended Complaint alleges several distinct violations of the FDCPA, Plaintiff seeks summary judgment only with respect to the violations for which she claims the underlying facts are undisputed, namely: (1) Schneider's failure to make required statutory disclosures; (2) Schneider's improper disclosure of information concerning Douyon's debt to third parties; (3) the voicemail message left by Schneider that allegedly contains false threats of arrest; and (4) Schneider's distribution of his business card which gave the false impression that he is primarily a criminal investigator and that he is affiliated with the United States. Pl's. Mem. [DE 72-19] at 9-14. The Court will address each alleged violation in turn, but first addresses a threshold matter — whether Schneider is a debt collector under the
Subject to certain exceptions not applicable here, a "debt collector" under the FDCPA is any person:
15 U.S.C. § 1692a. Plaintiff's Rule 56.1 Statement asserts that Schneider is a debt collector. Pl's. Stmt. [DE 72-1] ¶ 14. In response, Defendants state that whether or not Schneider is a debt collector is a legal conclusion "that is respectfully referred to the Court for resolution." Defs.' Counterstmt. [DE 73-1] ¶ 14.
The Court concludes that Schneider is a debt collector under the FDCPA. First, the instrumentality of interstate commerce element is satisfied here because Schneider testified that he used telephones as part of the debt collection process. See Schneider Tr. at 39 ("Usually, after a first visit, I might have called to see if they were in, they got my message, if I left a message with someone at the house."), 50 ("It was a hot night, and I had called her....").
As to the regular or principal debt collection aspect of the statute, Defendants admit that since 2009, Schneider "has primarily worked as a freelance debt collector.... [a]nd from approximately May through September 2010 Mr. Schneider's freelance debt collection work included collecting money owed to New York Medical." Defs.' Counterstmt. [DE 73-1] ¶ 15. Moreover, Schneider testified that his job at his former employer, C.L.B., "was to go after [debtors] and try to collect the money that [clients] had, you know, paid out." Schneider Tr. at 20. Schneider further testified that he continued to perform these services on a freelance basis beginning in 2009 for clients, including N.Y. Medical. See id. at 25, 28. Schneider estimated that he handled from 15 to 20 debt collection cases for N.Y. Medical and 10 to 30 cases as a freelancer in 2009. Id. at 25-26, 35. Based on these facts, the Court concludes that Schneider's conduct satisfies the regular or principal debt collection prong of the definition and that
1. Failure to Make Statutory Disclosures
The FDCPA requires debt collectors to provide consumers with certain statutory notices which Plaintiff claims Schneider failed to provide. Defendants did not submit any opposition regarding these claims.
Plaintiff first argues that Schneider violated 15 U.S.C. § 1692g, which mandates that a debt collector send the consumer a written notice containing, inter alia, the following information:
15 U.S.C. § 1692g(a)(3)-(5); see Derisme v. Hunt Leibert Jacobson, PC, No. 10-CV-244, 2010 WL 4683916, at *4 (D.Conn. Nov. 10, 2010). The statement must be provided within five days after the initial communication with the consumer unless the initial communication contains the statements or the consumer has paid the debt. 15 U.S.C. § 1692(a). Plaintiff alleges that Schneider failed to provide the required statements within five days of his initial communication with Plaintiff. Am. Compl. ¶ 60.ix.
The notices required under 15 U.S.C. § 1692g must, by the terms of the statute, be in writing. Defendants admit that "aside from his business card, [Schneider] never gave Ms. Douyon any documents." Defs.' Counterstmt. [DE 73-1] ¶ 27; see Affidavit of Seymour Schneider ¶ 4 ("Schneider Aff."), Ex. 2 to Defs.' Opp. Mem. [DE 75]. The business card does not contain any of the 15 U.S.C. § 1692g notices. See Schlanger Decl., Ex. J. Section 1692g is a strict liability statute and a debt collector commits a violation whenever it fails to provide the required notice, regardless of whether or not the lack of disclosure is egregious and whether or not it caused any actual harm. See Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir.1996); Ostrander v. Dentistry by Dr. Kaplansky, PLLC, No. 07-CV-852, 2010 WL 1407300, at *6 (W.D.N.Y. Mar. 30, 2010); Savino v. Computer Credit, Inc., 960 F.Supp. 599 (E.D.N.Y.1997); Cavallaro v. Law Office of Shapiro & Kreisman, 933 F.Supp. 1148, 1154 (E.D.N.Y. 1996). There are no genuine issues of material fact regarding whether Schneider provided Plaintiff with the required written disclosures. Clearly, he did not. Therefore, Plaintiff is entitled to summary judgment on her § 1692g claim.
Section 1692e(11) also requires debt collectors to provide certain disclosures. Specifically, the subsection provides:
15 U.S.C. § 1692e(11). The statements required to be provided in the initial communication are often referred to as "Mini Miranda" notices. Foti v. NCO Fin. Sys., Inc., 424 F.Supp.2d 643, 650 (S.D.N.Y. 2006). Plaintiff seeks summary judgment on her claim that Schneider violated § 1692e(11) because Schneider failed to include the required disclosures in his business card or in documents he allegedly left with Plaintiff at her workplace, see Pl's. Mem. [DE 72-19] at 10-11, or in the recorded voicemail message he left for Plaintiff, see id. at 13-14.
Plaintiff's motion is denied to the extent it is based on Schneider's business card and documents Schneider allegedly left at Plaintiff's workplace. The only § 1692e(11) claims alleged in the Amended Complaint pertain to Schneider's telephone messages and oral statements. See Am. Compl. ¶ 60 vi-viii. Thus, all of the § 1692e claims are premised on oral communications and the failure to include "e(11)" notices in the written material referenced by Plaintiff is not before the Court.
The Court does find, however, that Plaintiff is entitled to summary judgment on her § 1692e(11) claim with respect to the recorded voicemail message left by Schneider. In the voicemail message, Schneider stated:
Joint Pre-Trial Stmt. [DE 60] ¶ 18. Since this message was not the initial communication, the only disclosure required was for Schneider to state that he was a debt collector.
2. Schneider's Improper Disclosure of Information Concerning Douyon's Debt to Third Parties
Section 1692c(b) of the FDCPA states that:
15 U.S.C. § 1692c(b). Plaintiff argues that she is entitled to summary judgment on
Plaintiff is not entitled to summary judgment on this claim because she does not assert a violation of § 1692c(b) in her Amended Complaint. The Amended Complaint alleges that by "[c]ommunicating in connection to Ms. Douyon's alleged debt to third parties via phone messages and in-person visits at work and home, without Ms. Douyon's prior consent," Schneider violated § 1692c(a)(2) and/or 1692d(6). However, there is no allegation that Schneider violated 15 U.S.C. § 1692c(b). See Am. Compl. ¶ 60vii. Therefore, Plaintiff's motion is denied. See Osborn v. Ekpsz, LLC, 821 F.Supp.2d 859, 876 n. 6 (S.D.Tex.2011) (denying summary judgment on § 1692 claim where Plaintiff did not assert violation of particular subsection in complaint).
Even if Plaintiff had asserted a violation of § 1692c(b) in the Amended Complaint, Plaintiff would not be entitled to summary judgment on this claim. First, although it is undisputed that Schneider spoke to Plaintiff in front of the receptionist, see Defs.' Counterstmt. [DE 73-1] ¶¶ 21-22, Plaintiff has not demonstrated that the receptionist even heard Schneider's statements such that Schneider can be found to have "communicated" with the receptionist. Second, assuming that speaking in front of the receptionist constitutes a communication, there are issues of fact as to whether Schneider had Plaintiff's consent to do so. Schneider testified that Plaintiff said they could talk about the check she received from her insurance company in front of the receptionist. See Schneider Tr. at 71-72. Assuming Plaintiff properly asserted this claim, a jury would need to decide whether or not Plaintiff did indeed give Schneider consent to discuss her debt in front of the receptionist. For the foregoing reasons, Plaintiff's motion for summary judgment on her § 1692c(b) claim is denied.
3. Schneider's Threats in His Voicemail Message
There is no dispute that Schneider left Plaintiff a voicemail message in which he stated he was "gonna see about coming with the sheriff and have you arrested." See Joint Pre-Trial Stmt. [DE 60] ¶ 18. Plaintiff seeks summary judgment on her claim that the message violated §§ 1692e(4) and (5).
15 U.S.C. § 1692e(4). Similarly, subsection e(5) prohibits "threat[s] to take any action that cannot legally be taken or that is not intended to be taken." "To determine
There can be no dispute that Schneider's statement to the effect that he was going to have the sheriff arrest Douyon was a threat of arrest. The issue then becomes whether Schneider could legally take such action and had the intent to do so. As to whether Schneider could take such action, Defendants argue that "he was lawfully entitled to look into having Plaintiff arrested" based on his belief that she committed larceny by cashing the checks issued to her by her insurance company and not using those funds to pay her N.Y. Medical bill. Defs.' Mem. [DE 73] at 9. Plaintiff argues that she could not have been arrested for larceny as a result of this conduct because N.Y. Medical was not the owner of the checks. Pl's. Reply Mem. [DE 74] at 3-4. The Court agrees with Plaintiff. The New York Court of Appeals has held that the failure of an insured to use the proceeds of a policy to pay for costs that a policy was intended to cover cannot serve as a basis for a larceny prosecution. See People v. Jennings, 69 N.Y.2d 103, 127-28, 512 N.Y.S.2d 652, 664-65, 504 N.E.2d 1079 (1986).
Assuming Schneider's action was lawful, Plaintiff will still need to prove that Schneider had no intention of carrying out his threats. See Tragianese v. Blackmon, 993 F.Supp. 96, 99-100 (D.Conn.1997); Tsenes v. Trans-Continental Credit and Collection Corp., 892 F.Supp. 461, 465 (E.D.N.Y.1995). It is undisputed that Schneider never actually contacted the sheriff. Defs.' Counterstmt. [DE 73-1] ¶ 26. Schneider, however, states in his Affidavit that he "fully intended to see about the possibility of having Plaintiff arrested" and "discussed that option with David Golyan...." Schneider Aff. ¶ 3. In light of this statement, made under oath, the Court cannot conclude at this time that Schneider had no intention of carrying out his threats. Thus, this issue is left to a jury to determine and Plaintiff's motion for summary judgment on her § 1692e(4) and (5) claims is denied.
4. Schneider's Distribution of His Business Card
On one occasion, Schneider left his business card with Douyon. Defs.' Counterstmt. [DE 73-1] ¶ 23. The business card depicts an American flag and bears the title "Financial Crimes Investigator" under Schneider's name. Id. Also listed, along with Schneider's phone number and an email address, is the four-digit code "# 5416." Schlanger Decl., Ex. J. Plaintiff seeks summary judgment on her claim that Schneider's distribution of his business card violated 15 U.S.C. §§ 1692e, e(1), e(4), e(7), e(9), e(10) and f.
The Court begins its analysis with the alleged violations of § 1692e(1) and (9). According to Plaintiff, Schneider violated subsections e(1) and e(9) because his business card gave the false impression that Schneider was associated with the United States and gave the false impression that Schneider was primarily a criminal investigator, when he was actually a debt collector. Pl's. Mem. [DE 72-19] at 11-13; Pl's. Reply Mem. [DE 74] at 4-5.
Subsection e(1) prohibits:
Subsection e(9) prohibits:
First, Plaintiff's motion is denied with respect to the allegation that Schneider's business card gave the false impression that Schneider was a criminal investigator because, as discussed below, there are genuine issues of fact whether Schneider was a criminal investigator.
Turning to whether the business card falsely suggested a government affiliation, Defendant argues that even the least sophisticated consumer would not interpret the business card as suggesting that Schneider was affiliated with the government. Defs.' Mem. [DE 73] at 7-8. By way of example, in Osborn, 821 F.Supp.2d at 876-77, the court dismissed a claim that was based on (1) the use of an address block similar to that associated with certain Texas courts, (2) the use of a letterhead similar to that used by a judge, (3) the use of a bar code that resembled a court document, and (4) the name "Texas Final Judgments, LLC," finding that even the least sophisticated consumer would understand that the defendant was not a Texas court. Similarly, in Kahen-Kashani v. Nat'l Action Fin. Servs., Inc., No. 03-CV-828, 2004 WL 1040384, at *6 (W.D.N.Y. Apr. 12, 2004), the court dismissed claims stemming from the use of the word "National" in defendant's name "National Action Financial Services, Inc." where no other references or symbols of the national government were used. See also Kuehn v. Cadle Co., Inc., No. 04-CV-432, 2007 WL 1064306, at *5 (M.D.Fl. April 6, 2007) (holding that letter did not falsely imply that it was authorized by the IRS even though the IRS was mentioned where the letter did not look like a government document); Desantis v. Roz-Ber, Inc., 51 F.Supp.2d 244, 246-47 (E.D.N.Y. 1999) (holding that debtor could not find that the use of the name "New Jersey Credit Collection Agency" was affiliated with a government entity); Pettit v. Retrieval Masters Creditors Bureau, 42 F.Supp.2d 797, 807 (N.D.Ill.1999) (holding that use of word "national" does not suggest affiliation with the United States government).
Like the documents in those cited cases, it would be unreasonable to interpret Schneider's business card as indicating any governmental affiliation. Even the hypothetical least sophisticated consumer would not conclude that the appearance of an American flag and the use of the words "Financial Crimes Investigator" directly under Schneider's name was the reflection of Schneider's affiliation with a governmental entity. Notably, the card does not
Schneider's business card differs materially from the types of representations the courts have found to violate the FDCPA. For example, in Adams v. First Fed. Credit Control, Inc., No. 91-CV-2467, 1992 WL 131121, at *2 (N.D.Ohio May 21, 1992), the court granted plaintiff's motion for summary judgment, holding that the use of the word "federal" on defendant's letterhead, sandwiched between two icons which were similar to the seal of the United States, gave the consumer the impression that defendant was affiliated with the federal government. In Zimmerman v. Portfolio Recovery Associates, LLC, 276 F.R.D. 174 (S.D.N.Y.2011), the court granted summary judgment for plaintiff where defendant sent plaintiff a "Pre-Suit Package" which included a summons and complaint bearing a caption that referenced the District Court of the County of Nassau, First District. See also Gammon v. GC Servs. Ltd. P'ship, 27 F.3d 1254, 1257-58 (7th Cir.1994) (reversing dismissal of claim based on statement that defendant "provided the systems used by a major branch of the federal government and various state governments to collect delinquent taxes"). Indeed, some courts have held that the application of § 1692e(9) is limited to "egregious situations," unlike the one presented here, "where the debt collector overtly impersonates a government agency or where it attempts to hide its identity by using a false alias." Sullivan v. Credit Control Servs., Inc., 745 F.Supp.2d 2, 10 (D.Mass.2010) (dismissing claim based on use of name "Government Employees Insurance Company" instead of GEICO); accord Dorner, 2008 WL 1704137, at *3. Unlike these cases, Schneider's business card does not give the impression that he is affiliated with the United States government and the Plaintiff is not entitled to summary judgment on her § 1692e(1) and (9) claims.
The Court next turns to Plaintiff's claim that Schneider violated subsections e, e(4), e(7), e(10) and f because Schneider's business card gave the false impression that he is "primarily a criminal investigator" when he is actually a debt collector. Pl's. Mem. [DE 72-19] at 12; Pl's. Reply Mem. [DE 74] at 4-5.
Subsection e contains a general prohibition against the use of "false, deceptive, or misleading characterizations." Similarly, subsection e(10) bars "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer." A representation is deceptive if it is "open to more than one reasonable interpretation, at least one of which is inaccurate." Clomon, 988 F.2d at 1319; Kahen-Kashani, 2004 WL 1040384, at *3 (granting summary judgment for defendant where plaintiff did not prove statements were inaccurate); Sullivan, 745 F.Supp.2d at 11 (dismissing claim where statement was not objectively false). Here, Plaintiff has not unequivocally established that Schneider's card contained any false representations. First, the Court does not share Plaintiff's view that the card gave the impression that Schneider was primarily a criminal investigator. In fact, the card gives no indication as to what Schneider's primary job was but rather simply states what appears to be a job title. As to whether or not Schneider was indeed a criminal investigator, the Court finds genuine issues of material fact. While Schneider testified that he was not trained or licensed as a financial crimes investigator, see Schneider Tr. at 24-25, this testimony does not necessarily compel the conclusion that Schneider was not providing
Plaintiff's motion with respect to her § 1692e(4) and e(7) claims is also denied. As discussed above, § 1692e(4) prohibits a debt collector from implying that nonpayment of a debt will result in arrest or imprisonment unless such action is lawful and the debt collector intended to take such action. Subsection e(7) prohibits the "false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer." Summary judgment on the subsection e(4) claim is precluded because, as noted previously, there are material issues of fact whether Schneider intended to take action with respect to having the Plaintiff arrested. As to the subsection e(7) claim, summary judgment is precluded because there is no evidence showing Schneider acted "in order to disgrace" Douyon. See Oscar v. Prof'l Claims Bureau, Inc., No. 11-CV-5319, 2012 WL 2367128, at *4 (E.D.N.Y. June 1, 2012).
Finally, Plaintiff is not entitled to summary judgment on her subsection f claim. Subsection f prohibits a debt collector from employing "unfair or unconscionable means to collect" a debt. Subsections f(1) through f(8) enumerate specific prohibited conduct. Although a violation of subsection f is not limited to the specific prohibited conduct, if a plaintiff is not alleging that the defendant committed one of the specific prohibited acts, the claim must be based on conduct that is distinct from any other FDCPA violation alleged in the complaint. See Oscar, 2012 WL 2367128, at *5; Basile v. I.C. Sys., Inc., No. 08-CV-42, 2011 WL 4368510, at *2 (W.D.N.Y. Sept. 19, 2011); Suquilanda v. Cohen & Slamowitz, LLP, No. 10-CV-5868, 2011 WL 4344044, at *9 (S.D.N.Y. Sept. 8, 2011); Osborn, 821 F.Supp.2d at 878; Foti, 424 F.Supp.2d at 667. Here, Plaintiff's subsection f claim is based on the same conduct supporting his claims under subsection e, e(4), e(7), and e(10). Therefore, the claim under subsection f fails and Plaintiff's motion for summary judgment on this issue must be denied.
To summarize, the status of Plaintiff's FDCPA claims is as follows: Plaintiff is entitled to summary judgment on her claim that Schneider violated 15 U.S.C. §§ 1692g and 1692e(11) (with respect to Schneider's recorded voicemail); summary judgment is denied with respect to Plaintiff's claims that Schneider violated 15 U.S.C. §§ 1692c(b), 1692e, 1692e(1), 1692e(4), 1692e(5), 1692e(7), 1692e(9), 1692e(10), 1692e(11) (with respect to Schneider's business card and documents left at Plaintiff's workplace), and 1692f. Although some of the claims are deficient as a matter of law, i.e., the §§ 1692e(1), e(9) and f claims, the Court will not dismiss them at this time. Defendants did not move for summary judgment on these claims and the Second Circuit has cautioned that a sua sponte grant of summary judgment without notice, while permitted, is strongly discouraged. See Bridgeway
B. The NYGBL § 349 Claims
Section 349 of the New York General Business law provides that "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful." To establish liability under this statute "(1) the defendants' acts or practices must have been directed at consumers, (2) the acts or practices must have been misleading in a material way, and (3) the plaintiff must have sustained injury as a result." Sheehy v. New Century Mortg. Corp., 690 F.Supp.2d 51, 74 (E.D.N.Y.2010). The Amended Complaint asserts several violations of § 349. As to Defendant Schneider, Plaintiff claims that, in addition to other unspecified conduct, all of Schneider's purported FDCPA violations are also violations of § 349. Am. Compl. ¶¶ 64, 67. Plaintiff further alleges that Schneider's violations of the FDCPA serve as a basis for imposing liability against the other Defendants under § 349. Id. ¶¶ 65-66. Finally, Plaintiff maintains that Defendants' misrepresentations regarding their entitlement to interest payments set forth in two letters sent by David Golyan violated § 349. Id. ¶ 67. Defendants move for summary judgment on all of these claims. Plaintiff moves for summary judgment on the claim based on alleged misrepresentations concerning interest owed by Plaintiff.
1. Plaintiff's Motion
Plaintiff moves for summary judgment on her N.Y. GBL § 349 claims based on letters mailed by Defendants on January 19, 2010 and March 15, 2010. See Pl's. Mem. [DE 72-19] at 14-17. These letters stated:
See Schlanger Decl., Ex. H; Defs.' Counterstmt. [DE 73-1] ¶ 8. In opposition, Defendants argue that these claims fail because Plaintiff never actually received the letters. See Defs.' Mem. [DE 73] at 5-6. Plaintiff does not dispute the fact that she never actually received the letters. Indeed, in her Rule 56.1 Statement submitted in Opposition to Defendants' Motion for Summary Judgment, Plaintiff stated: "It is uncontested that Plaintiff denied receiving the letters dated January 19, 2010 and March 15, 2010." Pls.' Counterstmt. [DE 69] ¶ 12. If Plaintiff did not receive the letters, it follows that she could not have been injured by them. Gale v. Int'l. Bus. Machs. Corp., 9 A.D.3d 446, 447, 781 N.Y.S.2d 45 (2d Dep't 2004) (dismissing claim where buyer did not allege that she saw the misleading statements prior to purchase). Therefore, Plaintiff's motion for summary judgment with respect to Defendants' letters is denied because she has not satisfied the injury element of the claim.
On reply, Plaintiff argues — for the first time — that she is entitled to summary judgment based on verbal representations made by David Golyan similar to the statements made in the letters. Pl's. Reply Mem. [DE 74] at 7 ("David Golyan repeated these fraudulent misrepresentations while discussing a repayment plan with Plaintiff over the phone in Summer 2010.") Because Plaintiff raised this theory for the first time in her reply, the Court will not consider it. See Mullins v. City of New York, 653 F.3d 104, 118 n. 2 (2d Cir.2011) (declining to consider argument raised for the first time in a reply brief)
2. Defendants' Motion
Defendants first argue that all of the N.Y. GBL § 349 claims should be dismissed because Plaintiff has not demonstrated actual harm. In order to succeed on a § 349 claim, a plaintiff must demonstrate that he or she was injured by the deceptive or misleading act. Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 55, 698 N.Y.S.2d 615, 720 N.E.2d 892 (1999). The harm does not necessarily need to be pecuniary harm. Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995).
Plaintiff alleges that she suffered actual harm as a result of the alleged § 349 violations, including but not limited to the harms referenced in ¶ 58 of the Amended Complaint. Am. Compl. ¶ 69. Paragraph 58 of the Amended Complaint states that Defendants' conduct caused Plaintiff to lose income as a result of time taken off from work and also caused the following harm: intense fear, including fear for her physical safety, stress, aggravation, loss of sleep, loss of appetite, crying, anxiety, nervousness, emotional distress, fear, worry and loss of happiness, loss of concentration, irritability, embarrassment, humiliation, intimidation, loss of tranquility, indignation, and pain and suffering. Defendants argue that "Plaintiff's evidence is only of nonsevere emotional harm that by itself ... is not compensable under either intentional or negligent tort theories [and] Plaintiff essentially seeks to use GBL § 349 to seek redress for harm to an interest that is not protected by the law." Defs.' Mem. [DE 68-1] at 12.
Contrary to Defendants' argument, emotional harm does satisfy the injury requirement for a claim under N.Y. GBL § 349.
Defendants also argue that Plaintiff's claims based on false assertions of entitlement to interest should be dismissed because Plaintiff cannot demonstrate she was injured by these alleged acts. As set forth above, it is undisputed that Plaintiff did not receive the January 19, 2010 and March 15, 2010 letters containing the allegedly false assertions. Therefore, Plaintiff could not have been injured by any statements made in these letters and the claim is dismissed to the extent it is based on the letters. In an attempt to save her claim, Plaintiff references Kuhn v. Account Control Technology, Inc., 865 F.Supp. 1443, 1449-50 (D.Nev.1994), in which the court granted summary judgment for the plaintiff on a claim that the defendant failed to provide notices required by FDCPA §§ 1692g(a)(4) and (5) despite the fact that the plaintiff never received the letters at issue. Unlike N.Y. GBL § 349, FDCPA § 1692g is a strict
For the sake of clarity, the Court emphasizes that the claim based on verbal false assertions of entitlement to interest may go forward. In arguing for dismissal of this claim, Defendants maintain that Plaintiff's "testimony makes it clear that her damages resulted from humiliation and fear resulting from her encounters with Mr. Schneider and the unanswered phone calls from N.Y. Medical, and not from assertions of some extra money owed as interest." Defs.' Mem. [DE 68-1] at 14. Defendants do not point to any evidence supporting this statement and the record does not establish that Plaintiff's emotional distress was caused solely by the factors Defendants state.
Defendants also argue in their reply brief that the claim based on verbal assertions should be dismissed because the amount sought was lawful. Defs.' Reply Mem. [DE 71] at 6. The Court need not address this argument because it was raised for the first time on reply. See Mullins, 653 F.3d at 118 n. 2. Moreover, the Court notes that, while Defendants' argument is somewhat difficult to decipher, it appears that they are arguing that the assertions were lawful because the parties could have legally agreed to the amount of interest Defendants sought. This does not answer the question whether the parties actually did agree to this amount. Absent such an agreement, Defendants' assertions may have been false and therefore could support a N.Y. GBL § 349 claim. See Diaz v. Portfolio Recovery Assocs., LLC, No. 10-CV-3920, 2012 WL 661456, at *13-14 (E.D.N.Y. Feb. 28, 2012) (recommending denial of motion to dismiss plaintiff's claim based on defendant's attempts to collect time-barred debt).
Defendants next argue that certain of the other acts alleged in the Amended Complaint were not materially misleading. Defs.' Mem. [DE 68-1] at 12-14. Specifically, Defendants argue that Schneiders' alleged impersonation of law enforcement through the use of a "gold shine `security' type badge" and "Financial Crimes Investigator" business card would not mislead a reasonable consumer. Defendants also argue that N.Y. Medical employee Nathan Khaimov's description of Schneider as an "inspector" was not misleading to a reasonable consumer. Deceptive acts under N.Y. GBL § 349 are defined as those acts "that are `likely to mislead a reasonable consumer acting reasonably under the circumstances.'" Horowitz v. Stryker Corp., 613 F.Supp.2d 271, 287 (E.D.N.Y.2009) (quoting Oswego, 85 N.Y.2d at 26, 623 N.Y.S.2d 529, 647 N.E.2d 741). "A deceptive practice, however, need not reach the level of common-law fraud to be actionable under section 349." Stutman v. Chem. Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 (2000).
Material issues of fact preclude summary judgment on these claims. Based on the current record, the Court cannot conclude that a reasonable consumer would not be misled into believing Schneider was associated with law enforcement based on the badge he allegedly displayed. The record is not clear as to the type of badge and the circumstances under which it was displayed, factors which would affect the determination of whether the representation was misleading. As to the business card, as discussed supra at pages 261-62, there are material issues of fact to be determined whether the "Financial
¶ 14. In Plaintiff's Counterstatement, she agrees that the Complaint contains this allegation and notes that Defendants denied it in their Answer. Pl's. Counterstmt. [DE 69] ¶ 15. A 56.1 Statement should contain statements of fact supported by evidence, see Local Civ. R. 56.1(a),(d), not a recitation of the allegations in the pleadings. Because Defendants failed to comply with this rule, there is no basis for the Court to determine whether Khaimov made the alleged statement. Moreover, the record is silent on whether or not Schneider is an "inspector" — a fact that is necessary to make a determination whether Khaimov's statement was misleading.
Defendants also argue that the GBL § 349 claims against N.Y. Medical should be dismissed to the extent that they are predicated on Schneiders' agency relationship with N.Y. Medical. As discussed below, there are material issues of fact regarding whether N.Y. Medical can be held vicariously liable for Schneider's acts. See Section III.E., infra.
For the forgoing reasons, Defendant's motion for summary judgment on Plaintiff's N.Y. GBL § 349 claim is denied, with one exception: the motion is granted with respect to Plaintiff's claim based on the allegedly false assertions set forth in the January 19, 2010 and March 15, 2010 letters and that claim is dismissed.
C. Intentional Infliction of Emotional Distress Claim
New York law applies to Plaintiff's tort claims because that is the state where the alleged tortious activity occurred. See Luizzi v. Pro Transp. Inc., No. 02-CV-5388, 2009 WL 252076, at *4 (E.D.N.Y. Feb. 2, 2009). In order to establish a claim for intentional infliction of emotional distress under New York law, a plaintiff must demonstrate (1) extreme and outrageous conduct; (2) intent to cause severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. D'Angelo-Fenton v. Town of Carmel, 470 F.Supp.2d 387, 399 (S.D.N.Y.2007) (quoting Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993)). New York states's highest court has made clear that the "requirements of the rule are rigorous, and difficult to satisfy." Howell, 81 N.Y.2d at 122, 596 N.Y.S.2d 350, 612 N.E.2d 699. The fourth element, severe emotional distress, must be supported by medical evidence. See Biberaj v. Pritchard Indus., Inc., 859 F.Supp.2d 549, 564-65 (S.D.N.Y. 2012) (collecting cases).
Defendants argue that Plaintiff's claim should be dismissed because the record is devoid of medical evidence to support her IIED claim. Defs.' Mem. [DE 68-1] at 9-10. Plaintiff did not respond to this argument in her opposition. On reply, Defendants state that "Plaintiff withdrew her claim" in her memorandum of law. Defs.' Reply Mem. [DE 71] at 2. Although Plaintiff's reply memorandum does not contain an affirmative statement that she is withdrawing this claim, she does appear to concede that she cannot satisfy the elements of an intentional inflection of emotional
Pl's. Opp. Mem. [DE 70] at 14. Plaintiff does not dispute that medical evidence is required, nor does she argue that she can provide medical evidence to support her claim. Indeed, in her Rule 56.1 Counterstatement, she states the following regarding her emotional distress: "It is uncontested that Plaintiff did not see a doctor, but rather, self-medicated for sleeplessness with over the counter medication." Pl's. 56.1 Counterstmt. [DE 69] ¶ 21. Plaintiff also concedes that she did not see any doctor other than her cardiologist Dr. Jeffrey Snow and that Dr. Snow's records do "not note any complaint by Ms. Douyon of anxiety, aggravation, stress, or pain...." Id. ¶¶ 23, 25-26.
D. Negligence Claims
Defendants seek summary judgment on Plaintiff's negligence claim (Sixth Cause of Action) and negligent hiring, retention, training, and supervision claims (Fifth Cause of Action) on the grounds that Plaintiff does not have a viable damages theory. According to the pleadings, Plaintiff's negligence claim is based on Defendants' "overly aggressive and unlawful collection activities" including:
Am. Compl. ¶ 109. Plaintiff claims that as a result of Defendants' negligence, she suffered lost income due to missed days from work. Id. ¶¶ 58, 102, 110. She also claims she suffered a wide variety of emotional damages. Id.
"A breach of the duty of care resulting directly in emotional harm is compensable even though no physical injury occurred when the mental injury is a direct, rather than a consequential, result of the breach and when the claim possesses some guarantee of genuineness." Ornstein v. New York City Health & Hosps. Corp., 10 N.Y.3d 1, 6, 852 N.Y.S.2d 1, 881 N.E.2d 1187 (2008) (internal quotations omitted); accord Carter v. United States, 760 F.Supp.2d 281, 282 (E.D.N.Y.2011); Kennedy v. McKesson Co., 58 N.Y.2d 500, 506, 462 N.Y.S.2d 421, 448 N.E.2d 1332 (1983). A plaintiff can demonstrate a
Plaintiff's claim is not so shocking or severe as to prove a guarantee of genuineness. The types of cases that meet this standard involve far more serious conduct, such as the death of a family member or a life-threatening disease. See id. at 375-76 (collecting cases). Moreover, as discussed above, Plaintiff cannot support her claim of emotional distress with medical evidence, see pp. 266-67, supra. Thus, the only way for the claim to survive is if Plaintiff was subjected to fear of physical injury as a result of the tortious conduct.
The Amended Complaint contains the following allegations regarding Schneider's visit to Plaintiff's workplace:
Am. Compl. ¶¶ 50-51. Plaintiff testified to these events in her deposition. Douyon Tr. at 202-203.
Based on this testimony, there are triable issues of fact regarding whether Plaintiff
Although Plaintiff's claim may forward to the extent that it is based on Schneider's threats, the Court rejects Plaintiff's attempts to circumvent the requirement of a guarantee of genuineness by claiming lost wages. Pls.' Opp. Mem. [DE 70] at 9-10.
Plaintiff's claim for negligent hiring, retention, training, and supervision may also go forward. Although Plaintiff asserts her negligence claims against N.Y. Medical and Dr. Golyan, the only viable negligence
Based on the foregoing, Plaintiff's negligence and negligent hiring/supervision claims will proceed to trial, but only to the extent that they are based on Schneider's visit to Plaintiff's office which allegedly caused her to fear for her physical safety.
E. NY Medical's Liability for Schneider's Misconduct
Defendant argues that Plaintiffs' N.Y. GBL § 349, intentional infliction of emotional distress,
Under New York law, a principal may be held liable for the torts of its agent committed within the scope of the agency. Bigio v. Coca-Cola Co., 675 F.3d 163, 175 (2d Cir.2012). A principal may held liable for its agent's violations of N.Y. GBL § 349. See People v. Gen. Electric Co., Inc., 302 A.D.2d 314, 317, 756 N.Y.S.2d 520 (1st Dep't 2003). "Under New York law, an agency relationship `results from a manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and the consent by the other to act.'" Steinbeck v. Steinbeck Heritage Found., 400 Fed.Appx. 572, 575 (2d Cir.2010) (quoting New York Marine & Gen. Ins. Co. v. Tradeline (L.L.C.), 266 F.3d 112, 122 (2d Cir.2001)). The key inquiry in determining the existence of an agency relationship is whether the principal exercised control over the agent with respect to the matters entrusted to the agent. See id.; Bodur v. Palisades Collection, LLC, 829 F.Supp.2d 246, 259 (S.D.N.Y.2011); Herzlinger v. Nichter, 09-CV-192, 2011 WL 1434609, at *9 (S.D.N.Y. Feb. 9, 2011); Race v. Goldstar Jewellery, LLC, 84 A.D.3d 1342, 1342-43, 924 N.Y.S.2d 166 (2d Dep't 2011).
Plaintiff has provided the Court with Schneider's testimony regarding the nature of his relationship with N.Y. Medical. Schneider testified that all of his interactions with N.Y. Medical were through David Golyan. Schneider Tr. at 70. He further stated that David Golyan asked him to pick up some checks from Douyon's home and that David Golyan gave him Douyon's file. Id. at 73. According to Schneider, David Golyan also told him to go speak to Douyon about a check and gave Golyan Douyon's address, the amount she owed N.Y. Medical, and the location where she worked. Id. at 74.
Id. at 77. Schneider visited Douyon's home as instructed at 3:00 and was told by a male who answered the door that Douyon was not there. Id. As to what happened next, Schneider stated:
Id. at 78-79.
Based on Schneider's testimony, the Court concludes that there are triable issues
Where a principal does not control an agent, the principal may still be vicariously liable for the agent's actions where the agent is vested with apparent authority. Green Door Realty Corp. v. TIG Ins. Co., 329 F.3d 282, 289 (2d Cir. 2003). Issues of fact regarding whether Schneider had apparent authority to act on N.Y. Medical's behalf also preclude summary judgment here. Apparent authority "arises from the written or spoken words or any other conduct of the principal which, reasonably interpreted, causes a third person to believe that the principal consents to have an act done on his behalf by the person purporting to act for him." Id. (internal quotation marks omitted). "The existence of apparent authority is normally a question of fact, and therefore inappropriate for resolution on a motion for summary judgment." Id. "Apparent authority is normally created through the words and conduct of the principal as they are interpreted by a third party, and cannot be established by the actions or representations of the agent." Id. (internal quotation marks omitted). Thus, the issue here is whether N.Y. Medical caused Plaintiff to believe that Schneider had the authority to act on its behalf with respect to the collection of her debt. The parties dispute whether Plaintiff was told by N.Y. Medical that she should deal exclusively with Schneider in settling her debt. See Defs.' Reply Counterstmt. [DE 71-1] ¶ 38. If Plaintiff was told that she should deal exclusively with Schneider regarding her N.Y. Medical debt, then Plaintiff may be able to establish vicarious liability on a theory of apparent authority — a question left for the trier of fact. Defendants' motion regarding N.Y. Medical's liability for Schneider's acts is therefore denied.
F. Civil Conspiracy Argument
In connection with her N.Y. GBL § 349, intentional infliction of emotional distress, and slander claims, Plaintiff alleges that Schneider "worked in concert" with
The problem with Defendants' motion is that the Amended Complaint does not mention civil conspiracy. Plaintiff may not recover under a civil conspiracy theory without alleging that a conspiracy existed in her complaint. Therefore, Defendants' motion is moot.
In her opposition brief, Plaintiff argues that, in addition to a civil conspiracy theory, Defendants are also liable for Schneider's acts under an aiding and abetting theory. See Pl's. Opp. Mem. [DE 70] at 21. The elements of a claim for aiding and abetting liability are "(1) the existence of an underlying tort; (2) the defendant's knowledge of the underlying tort; and (3) that the defendant provided substantial assistance to advance the underlying tort's commission." Bigio, 675 F.3d at 172. This claim, however, fails for the same reason the civil conspiracy claim fails — there is no aiding and abetting claim set forth in the Amended Complaint.
For the foregoing reasons, Defendants' motion for summary judgment [DE 68] and Plaintiff's motion for summary judgment [DE 72] are GRANTED in part and DENIED in part. Specifically:
Id. at 127, 512 N.Y.S.2d 652, 504 N.E.2d 1079. The court also observed that "if the insurer had wanted assurance that the funds would be given directly to the companies that had actually sustained loss, it could have simply issued individual checks jointly payable to them and Sentry." Id. at 128, 512 N.Y.S.2d 652, 504 N.E.2d 1079.