Plaintiff MF Inc.. seeks leave to file a third amended complaint. Defendants RG Inc., PG Corp. and MR oppose the motion.
On October 1, 2004, Plaintiff and Defendants entered into an agreement, under which Defendants would sell to Plaintiff semi-precious gems, including blue topaz, citrine, peridot and green amethyst, the stones.
Plaintiff paid Defendants for the Stones under the belief that the Stones were semi-precious gems. Plaintiff sold the Stones to its customers under the belief that the Stones were semi-precious gems and not synthetic stones.
Plaintiff contends that Defendants breached the Agreement and delivered imitation stones, synthetic stones and simulated stones which were of inferior quality, thus a defective product.
Plaintiff commenced this action, asserting causes of action sounding in breach of contract (first), of the implied warranty of merchantability (second) and of the implied warranty of fitness for particular purpose (third); violation of General Business Law (GBL) § 392 (fourth); and false misrepresentation/fraud (fifth).
Plaintiff now seeks to add a cause of action for injury under GBL §§ 349, 350 and 350-a, and to add an additional defendant, ER.
Pursuant to CPLR 3025 (b), [a] party may amend his pleading at any time by leave of court. Leave shall be freely given upon such terms as may be just. CPLR 3025 allows liberal amendment of pleadings absent demonstrable prejudice. However, leave to amend a pleading must be denied where the proposed injury amendment is plainly lacking in merit.
GBL § 349 (a) provides that deceptive 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.
GBL § 350 provides that false advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state is hereby declared unlawful.
GBL § 350-a defines false advertising to mean advertising, including labeling, of a commodity, or of the kind, character, terms or conditions of any employment opportunity if such advertising is misleading in a material respect.
Defendants argue that Plaintiff offers no facts to support the amendments. 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. Malpractice was not involved.
Plaintiff sufficiently alleges the second and third elements. As a basis of Plaintiff s proposed new cause of action under GBL §§ 349, 350 and 350-a, Plaintiff alleges that Defendants made false statements, both orally and in advertisements. Plaintiff further alleges that it was damaged by Defendants’ failure to properly label the Stones as synthetic or imitation and the Defendants’ failure to advise Plaintiff that the Stones were synthetic or imitation constitutes violations under the GBL.
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