The following papers were considered in connection with the motion by defendants Kenneth Lauro Sr. and Florida Concepts Pools Inc., for an order pursuant to CPLR 3211 dismissing the amended complaint: Papers Numbered Notice of Motion, Affirmation, Exhibits A-J 1 Affirmation in Opposition 2 Reply Affirmation 3 DECISION and ORDER Plaintiff Arthur Franciosa commenced this action on August 18, 2020, naming as defendants Florida Concept Pools Inc. and Latham Pool Products Inc., claiming that he had entered into a purchase sale agreement with both defendants for a particular “Pacific Blue” color of fiberglass pool, but was delivered a pool of the wrong color. His causes of action claimed breach of contract, fraud, negligence in the sale, supply and delivery of the pool, and a violation of General Business Law §349 (a). An amended complaint filed on January 4, 2021 added as a defendant Kenneth Lauro Sr., the president of Florida Concepts Pools. A previous decision and order of this Court denied the motion of Florida Concepts Pools for dismissal based on asserted irregularities in the manner in which the complaint was amended. In now moving pursuant to CPLR 3211, defendants Florida Concepts Pools and Kenneth Lauro Sr. contend that the causes of action for fraud and pursuant to General Business Law 349 must be dismissed for failure to comply with the strict pleading requirements of CPLR 3016. They cite the complaint’s allegation in support of plaintiff’s fraud claim, that defendant Florida Concept Pools Inc., and/or its president Kenneth Lauro Sr. made material misrepresentations with the intent to induce the reliance of the plaintiff that he could provide the fiberglass pool in Pacific blue that plaintiff had contracted for and paid for. While acknowledging plaintiff’s allegation that the moving defendants misrepresented that they could “provide the fiberglass pool in Pacific Blue that plaintiff had contracted and paid for,” defendants argue that in the absence of specific details as to the date, time, place or manner of such misrepresentation, the fraud claim may not be maintained. The moving defendants also assert that the General Business Law claim is not sufficiently supported by the allegation that defendants represented that they were selling a Pacific Blue pool, then knowingly delivered a different color pool. The affirmation submitted by the moving defendants’ counsel in support, further remarks on “the patent falsity of the claim that the plaintiff had already paid for the pool at the time of the supposed misrepresentations,” and relies on the affidavit of defendant Lauro describing the series of events leading up to the dispute, to contend that the dispute was all plaintiff’s fault. As an additional basis for dismissal, as to defendant Lauro, the moving defendants contend that jurisdiction was not properly obtained over him, challenging the sufficiency of the attempts at personal service made by the process server before resorting to “nail and mail” service. They suggest that because, on two of his three attempts, the process server spoke with the defendant’s son, and then his daughter, through the “Ring” doorbell, and was informed that their father was in Florida and would not be back for months, he could have made substituted service pursuant to CPLR 308 (2). Discussion The branch of the motion addressed to the specificity of the pleading’s fraud allegations is denied. “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We 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 [1994]). The claimed misrepresentation here is not vague; on the contrary, it sufficiently apprises defendants of plaintiff’s exact claim of misrepresentation. While the specific moment of the alleged misrepresentation may not be pinpointed, its approximate point in the back-and-forth process is clear enough for pleading purposes. The rule that a claim of fraud may not be based on “[v]ague expressions of hope and future expectation” or “mere opinion and puffery” (see High Tides, LLC v. DeMichele, 88 AD3d 954, 958 [2d Dept 2011]) has no applicability here. Notably, the Court will not, on such a motion, engage in an assessment of the parties’ respective positions as to who caused the problem or who was at fault. However, the cause of action alleging a violation of General Business Law §349 must be dismissed. To state such a claim, the alleged misconduct must have a “broad impact on consumers at large,” and consequently, “the statute does not apply to private contract disputes unique to the parties” (see Wilner v. Allstate Ins. Co., 71 AD3d 155, 163 [2d Dept 2010], citing Anesthesia Assoc. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 59 AD3d 473, 480 [2d Dept 2009]). Regardless of whether any misrepresentations were affirmatively made, this private dispute does not fall within the coverage of General Business Law §349. Finally, the moving defendants’ challenge to service on defendant Lauro is rejected. Notably, they do not dispute that the site at which service was attempted was defendant’s actual dwelling. Nor do they dispute that three attempts were made. Rather, they take issue with the process server’s resort to affix-and-mail service after, on two of the three attempts, speaking with the defendant’s son and daughter through the “Ring” doorbell. Specifically, the affidavit of plaintiff’s process server sets forth that the first attempt to serve the defendant was made on April 12, 2021, at 4:40 p.m., at defendant’s residence in Mahopac, New York. The process server states that he spoke through the “Ring” doorbell with defendant’s son, who stated that defendant was in Florida and would be back in August. The second attempt was made at that address at 7:18 a.m. on April 13, 2021, at which time there was no answer at the door. On the third attempt, on April 14, 2021, at 7:53 p.m., the process server spoke through the “Ring” doorbell with defendant’s daughter, who advised him that defendant was away until September. He then affixed a copy of the pleadings to the door, and mailed a second copy. Defendants’ argument is that the facts as recited in the affidavit of service establish that the process server failed to use due diligence to attempt to serve Lauro pursuant to CPLR 308 (2), before resorting to affix-and-mail service pursuant to CPLR 308 (4). Defendants contend that because CPLR 308 (4) only authorizes affix-and-mail service “where service under paragraphs one and two cannot be made with due diligence,” his affidavit conclusively proves that he failed to exercise the due diligence to serve a defendant by substituted service, in the absence of a statement by the process server that he requested, through the “Ring” doorbell’s speaker, to leave the papers with the responding family members, or for the responding son and daughter to open the door to accept the papers. Defendant cites in support McSorley v. Spear (50 AD3d 652 [2d Dept 2008]), where the Court held affix-and-mail service improper because the process server failed to make “genuine inquiries about the defendant’s whereabouts and place of employment,” although he made three attempts to serve the defendant at her home (see also O’Connell v. Post, 27 AD3d 630 [2d Dept 2006]); Earle v. Valente, 302 AD2d 353 [2d Dept 2003]). However, the requirement that a process server who repeatedly receives no answer at a defendant’s residence must make some inquiry about that defendant’s place of employment, has no applicability here. That required additional inquiry is derived from CPLR 308′s provision directing personal service at either the defendant’s dwelling place or at his or her actual place of business. In contrast to the foregoing cases, the additional inquiry suggested by defendants does not concern making efforts to locate an alternative location at which personal or substituted service may be made. Rather, it seeks to expand what is necessary to establish “due diligence” for purposes of CPLR 308 (4). However, nothing in CPLR 308 supports requiring the type of additional inquiry defendants attempt to engraft on the statutory requirements, when the door is answered via a remote technology, by an individual other than the defendant, who may be located anywhere, answering by means of a speaker through which the person answering can be heard but not seen by the person at the door. Defendants suggest that these facts are equivalent to those presented in Ramirez v. Romualdo (25 AD3d 680 [2d Dept 2006]), where the indication in the affidavit of service that “the process server spoke to a person of suitable age and discretion at the defendant’s actual dwelling place when he attempted service,” prompted the Court to hold that “service pursuant to CPLR 308 (2) could have been made with due diligence” (id. at 680). This Court finds that case to be inapposite. Notably, it was issued before the advent of the remote technology employed by “Ring” doorbells, at a time when, if a person responded to a doorbell, that person was present on the other side of the door. Now, a person answering a door remotely using the “Ring” doorbell could be anywhere, and the person at the door is in effect being informed that the responder does not intend to physically open the door. Plaintiff’s process server fulfilled his obligation by visiting defendant’s dwelling place three times and ringing defendant’s doorbell, and when his presence was known, but the door was not opened by a person of suitable age and discretion to whom he could deliver the papers, he properly employed the affix-and-mail option. The suggestion that a process server must first demand that the individual who answered the door remotely should physically open the door to accept substituted service would impose a burden on process servers confronted with this remote answering technology, beyond that dictated by the statute. Accordingly, it is hereby ORDERED that the motion to dismiss the complaint is granted only as to the fourth cause of action, brought pursuant to General Business Law §349, and is otherwise denied, and it is further ORDERED that the parties shall appear in the Conference Part of this Court on a date and in a manner of which they will be notified by that Part. This constitutes the Decision and Order of the Court. Dated: October 28, 2021
