The following papers were read on this motion: Notice of Motion to Dismiss and Supporting Papers [Seq. 001] X Affidavit in Opposition to Motion and Supporting Papers [Seq. 001] X Memorandum of Law in Reply [Seq. 001] X DECISION AND ORDER ON MOTION Upon the foregoing e-filed papers, the motion filed by the Defendant, A.G. s/h/a d/b/a CEO, Publishers Clearing House ["Defendant"], for an Order pursuant to CPLR 3211(a)(1) and (a)(7) dismissing the Plaintiff’s, P.A.M. ["Plaintiff"] Complaint [Seq. 001], is determined as hereinafter follows: The pro-se Plaintiff commenced the instant action by filing a Summons and Complaint on November 16, 2022 (the “Complaint”). The Defendant’s motion to dismiss is filed in lieu of an Answer. The instant action arises from the Plaintiff’s allegations that the Defendant, who is the Chief Executive Officer of Publishers Clearing House ["PCH"], has engaged in fraud by, inter alia, using “persuasive language” in PCH’s games and sweepstakes which misleads the public to believe that a winner will be declared for each game or sweepstake, when in fact over eighty percent of the games and sweepstakes result in no winner. The Plaintiff alleges that during the years between 2015 to 2021, he diligently followed the protocols required by the Defendant to participate in the games, and in doing so he accumulated millions of credits which could be used to enter other events. The Plaintiff alleges, inter alia, that the Defendant claimed that the “Power Prize” of $3,409,090.90″ was awarded on June 9, 2021, but there is no such award listed on PCH’s published list of winners and that upon the Plaintiff’s further research, he noticed that the majority of the prizes promoted by the Defendant were not awarded to anyone. The Plaintiff alleges that he has sustained monetary damages in the amount of $7,123.25 and is seeking an additional $11,157,500.00 in punitive damages for deception, malfeasance, gross misrepresentation, and fraud. Appended to the Plaintiff’s Complaint and incorporated therein by reference is a “Private Administrative Remedy Demand” ["PARD"] prepared by the Plaintiff, which the Plaintiff contends sets forth all the facts of the matter in detail. According to the Plaintiff, the Defendant’s failure to rebut the claims contained in the PARD constitutes the Defendant’s “tacit agreement” to each claim made by the Plaintiff. The Plaintiff alleges that the Defendant failed to respond to the Plaintiff’s claims in the PARD and that he therefore tacitly agreed to each claim. The Defendant now moves to dismiss the Plaintiff’s Complaint pursuant to CPLR 3211(a)(1) and (a)(7). “On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory”. (Scialdone v. Derosa, 148 AD3d 741, 742 [2d Dept 2017] [citations omitted]). If the court considers evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7), “the criterion then becomes ‘whether the proponent of the pleading has a cause of action, not whether he has stated one’”. (Sokol v. Leader, 74 AD3d 1180, 1181-1182 [2d Dept 2010]; citations omitted). A Complaint may be dismissed based on the defendant’s affidavit only when such affidavit establishes “conclusively that the plaintiff has no cause of action”. (Sokol, 74 AD3d at 1182). “A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be appropriately granted ‘only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law’” (Rabos v. R & R Bagels & Bakery, Inc., 100 AD3d 849, 851 [2d Dept 2012], as amended [Apr. 15, 2013] [citations omitted]). “In order to be considered documentary evidence within the meaning of CPLR 3211(a)(1), the evidence ‘must be unambiguous and of undisputed authenticity’”. (Rabos, 100 AD3d at 851 [citations omitted]). The Plaintiff’s Complaint alleges that the Defendant engaged in fraud by misleading the public to believe that a winner will be declared for each of PCH’s games and sweepstakes, when in fact 80 percent of the games and sweepstakes result in no winners. However, after affording the Complaint with a significantly liberal construction, accepting all facts as alleged in the Complaint to be true, and affording the Plaintiff the benefit of every possible favorable inference therefrom, the Court finds that the Complaint fails to state a cause of action upon which relief can be granted. As an initial matter, the Plaintiff commenced this action against the Defendant in his capacity as the CEO of PCH. However, the material factual allegations in the Complaint are wholly insufficient, particularly under CPLR 3016[b]‘s heightened pleading standard for causes of action involving fraud or misrepresentation, to state a cause of action as against the Defendant in his capacity as the CEO of PCH. (See High Tides, LLC v. DeMichele, 88 AD3d 954, 958-59 [2d Dept 2011]). In addition to the Complaint failing to make out a cause of action as against the CEO Defendant, the Complaint also fails to make out a cause of action for fraud as against PCH. To state a claim for fraud under New York law, the plaintiff must allege, with the required particularity pursuant to CPLR §3016(b), that there was: (1) a misrepresentation or material omission of fact which was false and known to be false by a defendant; (2) the misrepresentation or omission was made for the purpose of inducing the other party to rely on it; (3) justifiable reliance of the other party on the misrepresentation or material omission; and (4) injury. (See Spector v. Wendy, 63 A.D.3d 820, 821 [2d Dep't 2009] [citations omitted]). In this case, the Plaintiff has failed to allege a false statement made by PCH or the Defendant concerning how the company conducts its advertised sweepstakes and contests. Furthermore, to the extent that the Complaint contains allegations that even suggest a false statement or misrepresentation made by PCH or one of its employees, such allegations have been utterly refuted by the affidavits submitted by PCH’s representatives, Senior Contest Manager M.C., and Vice President, Consumer & Legal Affairs C.L.I.. Esq., thereby conclusively establishing that the Plaintiff has no cause of action for fraud. Furthermore, the Plaintiff admits throughout his Complaint that there is no “justifiable reliance” as required to prevail on a cause of action for fraud, as he states that he continues to participate in the PCH program despite knowing the chance of winning is “miniscule” and the “odds of success are extremely limited”. Additionally, regarding the Plaintiff’s references to a purported “Private International remedy Demand” ["PARD"] which was allegedly mailed to the Defendant before the Plaintiff commenced the instant action, the Court has reviewed the so-called PARD and related documents appended to the Complaint, and finds that the allegations in the Plaintiff’s Complaint relating to such documents fail to make out any legal claim recognized under New York State or federal law. (See United States v. Silver, 2021 U.S. Dist. LEXIS 1670, *15-17 [D. Alaska, Jan. 5, 2021]). As the Court finds that the Plaintiff’s Complaint fails to state a cognizable cause of action, the Defendant’s motion shall be GRANTED, in its entirety, and the Complaint shall be dismissed. Accordingly, it is hereby, ORDERED, that the Defendant’s motion for an Order, pursuant to CPLR 3211(a)(7) and (a)(1) dismissing the Plaintiff’s Complaint is hereby GRANTED, and the Plaintiff’s Complaint is DISMISSED. This constitutes the Decision and Order of this Court. Dated: June 28, 2023
