Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this MotionPapers NumberedNotice of Motion and Affidavits Annexed 1Answering Affidavits 2Replying Affidavits 3DECISION/ORDER Defendant Caine & Weiner moves pursuant to Civil Practice Law and Rules (“CPLR”) 3211 (a)(1), (2), (3), & (7) to dismiss the instant complaint on the grounds that the plaintiff lacks standing to sue, that the court lacks subject matter jurisdiction over the action, that documentary evidence conclusively disproves the allegations in the plaintiff’s complaint, or in the alternative that the complaint fails to state a cause of action. Upon the foregoing cited papers, the defendant’s motion is granted. This action arises out of a collection letter sent to the plaintiff on June 8, 2016 regarding an outstanding debt that had been placed with the defendant for collection (see Defendant’s Ex. A). The plaintiff contends that the defendant violated 15 U.S.C. §1692, more commonly referred to as the Fair Debt Collections Practices Act (“FDCPA”), in connection with two phone calls made to the defendant on March 9, 2017 and March 10, 2017. The plaintiff alleges that the defendant revealed the plaintiff’s information to an unassociated third party, refused to accept a verbal dispute from plaintiff’s representative (“APM”), and failed to report to credit bureaus that plaintiff disputed his debt.Seeking dismissal pursuant to CPLR 3211(a)(2), the defendant contends that this court lacks subject matter jurisdiction over the action, as the FDCPA is a federal statute and the New York State Courts do not have jurisdiction to adjudicate causes of action that arise only under federal law. Pursuant to 15 USC §1692k, state courts are presumed to have concurrent jurisdiction over federal claims. Furthermore, the statutory langauage allows FDCPA claims to be made “in any other court of competent jurisdiction” and the New York City Civil Court is a court of competent jurisdiction.On a motion to dismiss pursuant to CPLR 3211 (a) (1), the movant must present documentary evidence that “utterly refutes plaintiff’s factual allegations [and] conclusively establish[es] a defense as a matter of law” (Goshen v. Mut. Life Ins. Co., 98 NY2d 314 [2002] [citing Leon v. Martinez, 84 NY2d 83 (1994)]). In this case, the defendant presents a signed limited power of attorney form along with a fax cover sheet, which reflects that the plaintiff sent a limited power of attorney form to the defendant, which allowed APM to assist plaintiff with the repair and restoration of his credit for the 24 months following April 13, 2015. Plaintiff faxed this form to the defendant on March 9, 2017. The conversation between Mr. Reyes of APM and the defendant under dispute occurred on March 10, 2017, one day after the plaintiff faxed the limited power of attorney to the defendant.As APM was specifically retained to communicate on the plaintiff’s behalf, APM was an associated third party, which utterly refutes the allegation that the defendant revealed the plaintiff’s information to an unassociated third party. Since there remains no question of fact as to whether the plaintiff provided the defendant with a limited power of attorney, and whether the limited power of attorney gave the defendant authorization to release information to Mr. Reyes, the branch of the respondents’ motion seeking dismissal pursuant to CPLR 3211 (a) (1) is granted as to plaintiff’s second cause of action.Defendant further seeks dismissal pursuant to CPLR 3211 (a) (7), arguing that the complaint fails to state a cause of action. On such a motion to dismiss the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). The court must accept each factual allegation as true and make no effort to evaluate the ultimate merits of the case (219 Broadway v. Alexander’s, 46 NY2d 506 [1979]).Plaintiff relies on Clark v. Absolute Collection Serv., 741 F3d 487 [4th Cir 2014] and alleges that the defendant violated FDCPA (15 USCS) §1692e, which prohibits using “false, deceptive, or misleading representation or means in the connection with the collection of any debt” (15 USCS §1692e). Plaintiff alleges that this was accomplished by defendant’s refusal to accept a verbal dispute from APM under 15 USC §1692g(a)(3). The defendant asserts that Clark has no applicability because the FDCPA does not apply to communications between collectors and debtor’s representatives.When a plaintiff alleges that a communication between a collector and debtor violated the FDCPA, §1692e, the “least sophisticated consumer” standard is applied (Kropelnicki v. Siegel, 290 F3d 118, 127 [2d Cir 2002]). Such standard is applied to FDCPA violations to “ensure the protection of all consumers, even the naive and the trusting, against deceptive debt collection practices” (Id. at 127, citing Clomon v. Jackson, 988 F2d 1314, 1320 [2d Cir 1993]). However, the “least sophisticated consumer” standard does not apply when the communication is between the collector and “an attorney…interposed as an intermediary between a debt collector and a consumer” (Vernot v. Pinnacle Credit Servs., L.L.C., No. 16-CV-3163 (JFB) (SIL), 2017 U.S. Dist. LEXIS 14835 (E.D.N.Y. Jan. 26, 2017). Communications between the collector and an intermediary are not protected by the FDCPA. (see Kropelnicki v. Siegel, supra ["misrepresentations to attorneys for putative debtors cannot constitute violations of the FDCPA"]; Rinaldi v. Green Tree Servicing LLC, No. 14 CV 8351 (VB), 2015 U.S. Dist. LEXIS 127564 (S.D.N.Y. June 8, 2015); Vernot v. Pinnacle Credit Servs., L.L.C., supra [the FDCPA does not apply to communications made by debt collectors to attorneys]).In this case, APM is not a “consumer” afforded protections under the FDCPA. APM is a credit repair and restoration company, to which the plaintiff gave limited power of attorney for the specific purpose of credit assistance. Accordingly, APM acted as an intermediary between the debt collector and plaintiff. Since the instant action arises from communications between the collector and plaintiff’s representative, violations under FDCPA do not apply, and the branch of the defendant’s motion seeking dismissal of that cause of action must be granted.Similarly, the plaintiff’s third cause of action, which alleges that the defendant failed “to communicate that a disputed debt is disputed,” also arises from FDCPA (15 USC) 1692(e) (15 USC §1692e[8]). As discussed supra, the FDCPA (15 USCS) §1692e does not apply to communications between the collector and debtor’s representative. Therefore, the branch of the defendant’s motion seeking dismissal of that cause of action is granted.Assuming that the plaintiff did, in fact, have a cause of action regarding his allegation that the defendant failed to report to credit bureaus that plaintiff disputed his debt, the FDCPA does not impose an affirmative duty on debt collectors to update the status of disputed debts that have already been reported to credit bureaus (Hooks v. Forman, Holt, Eliades & Ravin, LLC, 717 F3d 282 [2d Cir 2013] see Vernot v. Pinnacle Credit Servs., L.L.C., supra ["failing to inform a credit reporting agency of a change in status of a previously reported debt is not a violation of the FDCPA"]; Rogers v. Overton, Russell, Doerr & Donovan, LLP, 2017 US Dist LEXIS 19734 [NDNY Feb. 13, 2017, No. 1:16-cv-00784 (MAD/CFH)] ["a debt collector owes no affirmative post-reporting duty to communicate a dispute that arises after the debt has been reported"]). In this case, the defendant notified the plaintiff on June 8, 2016 that plaintiff’s failure to dispute the debt would result in the debt being reported to a credit bureau 60 days from the date of notice. Defendant also states the undisputed debt was reported to the credit bureau in August, 2016. The plaintiff’s representative called the defendant to dispute the debt on March 9, 2017, after the defendant reported the debt. Since the dispute was already sent to a credit bureau and there is no affirmative duty for the defendant to report a change in the status, defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) is granted.Defendant’s motion is hereby granted in its entirety and this action is dismissed with prejudice. This constitutes the decision and order of the Court.July 20, 2018
