ORDER ON PARTIAL MOTIONS TO DISMISS FILED BY DEFENDANTS ADVANCED ENDODONTICS OF BUFFALO, PC AND HATIM HAMAD, DDS (Docs. 9, 11) Plaintiff Dennis Krezic has sued Defendants Advanced Endodontics of Buffalo, P.C. and Hatim Hamad, DDS (“Moving Defendants”), as well as Defendant Brian Davidson, under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §1692 et seq., and New York General Business Law §349. The Amended Complaint (Doc. 10) alleges that Eagle Capital Enterprises (“ECE”) is a “debt collector” within the meaning of the FDCPA as well as an employee or alter ego of Defendants, and that ECE and Defendants violated the FDCPA and N.Y. Gen. Bus. Law §349 when they attempted to collect a debt from Plaintiff. (See id.) Moving Defendants have moved to dismiss Count II of the Amended Complaint, which alleges a violation of N.Y. Gen. Bus. Law §349, and to strike Plaintiff’s request for punitive damages under that statute. (Doc. 11.) Facts The Amended Complaint includes the following allegations: On or about September 23, 2019, Plaintiff received a voicemail from Defendant Brian Davidson stating the following: Denis Krezic my name is Brian Davidson, I need you to call me as soon as you get this message. It’s an issue that has to be address[ed] immediately. It’s April 30, 2019 [sic], it’s respectfully 8:10 AM I need you to call me back at 631-451-8077. I’ll be in the office till 3:00, any failure to respond by 3:00 leaves me to believe you absolutely don’t have any interest in resolving this issue, I’m forced to proceed. The number for my office again is 631-451-8077. (Doc. 10 at 2, 6.) On or about the same day, Plaintiff’s wife received a voicemail from Davidson. (Id. at 3, 7.) When Plaintiff’s wife returned the phone call, Davidson requested Plaintiff’s email address “so that he could send him a correspondence regarding the subject debt.” (Id. 8.) Plaintiff received another voicemail from Davidson on or about the same day. In this voicemail, Davidson stated he “represent[s] Advanced Endodontics of Buffalo.” The voicemail advised Plaintiff that he would soon receive an email with further information. (Id. 9.) In the email, Davidson wrote: We are representing the legal interest of Advanced Endodontics of Buffalo. Unless the full balance is paid immediately to Eagle Capital Enterprises, we would have no other recourse but to report your account to the various credit reporting agencies and to exercise whatever rights and remedies necessary under the law to enforce full restitution. Note the check is payable to Eagle Capital Enterprises. We anticipate in having this matter resolved amicably. (Id. 10.) Later that day, Davidson left another voicemail for Plaintiff warning that if Plaintiff failed to remit payment, we[']re moving forward and initiating proceedings against you. There is no more conversations, my understanding is that this was explained to you numerous times and you’re completely reluctant to comprehend this, ok, so bottom-line is that Friday is the deadline and if it’s not in the office we[']re moving forward on this. (Id. 11.) Plaintiff alleges that he “became nervous, upset, anxious and suffered from emotional distress” due to Defendants’ actions. (Id. at 5, 29.) The Complaint also contains allegations about statements by Defendant Davidson to a third party, Agnes Holmes. (See id. at 4, 15.) Because these allegations are not necessary for the court’s disposition of this motion, the court does not recite them here. Analysis I. Standard of Review To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court accepts all plausible allegations in the complaint as true and draws all reasonable inferences in favor of the non-moving party. Lanier v. Bats Exch, Inc., 838 F.3d 139, 150 (2d Cir. 2016). However, “[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice.” Empire Merchants, LLC v. Reliable Churchill LLLP, 902 F.3d 132, 139 (2d Cir. 2018) (quoting Iqbal, 556 U.S. at 678). “Dismissal is appropriate when ‘it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff’s claims are barred as a matter of law.’” Parkcentral Glob. Hub Ltd. v. Porsche Auto. Holdings SE, 763 F.3d 198, 208-09 (2d Cir. 2014) (per curiam) (quoting Conopco, Inc. v. Roll Int’l, 231 F.3d 82, 86 (2d Cir. 2000)). II. Sufficiency of the Pleadings for a Claim Under N.Y. Gen. Bus. Law §349 N.Y. Gen. Bus. Law §349 declares unlawful “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. Law §349(a). The statute creates a private cause of action for individuals harmed by violations of the statute, provides for the award of actual or statutory damages, and permits a court to award punitive damages for willful violations. Id. §349(h). The New York Court of Appeals has recognized that §349 “on [its] face appl[ies] to virtually all economic activity, and [its] application has been correspondingly broad.” Plavin v. Grp. Health Inc., 146 N.E.3d 1164, 1168 (N.Y. 2020). “[A] plaintiff under section 349 must prove three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act.” Stutman v. Chem. Bank, 731 N.E.2d 608, 611 (N.Y. 2000). Moving Defendants do not challenge the sufficiency of the pleadings with respect to the first element of a §349 claim. Instead, Moving Defendants contend that Plaintiff has “failed to allege that the Moving Defendants made any false or misleading statements to him resulting in an injury.” (Doc. 11-2 at 3.) Moving Defendants identify several purported deficiencies in the Amended Complaint’s factual allegations. First, Moving Defendants contend that the Amended Complaint lacks sufficient factual allegations relating to their deceptive or misleading actions. (Id. at 4.) Second, Moving Defendants contend that any alleged misleading statements made by Defendant Brian Davidson regarding his capacity as an attorney “were not made to the Plaintiff (Id. at 4 (emphasis omitted); Id. at 7) and “have no relation whatsoever to Brian Davidson’s collection of the debt owed by the Plaintiff (Id. at 5; id. at 7). Consequently, Moving Defendants argue that Plaintiff has failed to plausibly plead that he was injured by the false statements. (Id. at 5.) The court addresses these arguments in turn. A. Moving Defendants’ Responsibility for Davidson’s Statements The Amended Complaint alleges that the Moving Defendants are liable for the conduct of Brian Davidson because he served as their agent. The Amended Complaint alleges that “ECE/Brian Davidson solely collects debts allegedly due to [Moving] Defendants.” (Doc. 10 24.) The Amended Complaint further alleges that, since July 2015, Moving Defendants have employed Davidson to collect debts owed to them “with the knowledge that EC[E] is not a[] legitimate company recognized in New York and with the knowledge that Brian Davidson is posing as an attorney and making illegal threats to consumers.” (Id.
25-26, 28.) Alternatively, the Amended Complaint alleges that ECE is the alter ego of Moving Defendants and that Moving Defendants attempt to collect their own debts through their employee, Brian Davidson. (Id.
