On September 13, 2023, the Second Department issued a decision in Abraham v. Torati, 2023 NY Slip Op. 04561, affirming the dismissal of a GBL 349 claim for lack of allegations of public harm, explaining:
The second cause of action alleged violation of General Business Law § 349. To establish a cause of action under General Business Law § 349, a plaintiff must allege that: (1) the defendant’s conduct was consumer-oriented; (2) the defendant’s act or practice was deceptive or misleading in a material way; and (3) the plaintiff suffered an injury as a result of the deception. Accordingly, parties claiming the benefit of General Business Law § 349(h) must, at the threshold, charge conduct that is consumer oriented. Private contract disputes, unique to the parties do not fall within the ambit of the statute. The single shot transaction, which is tailored to meet the purchaser’s wishes and requirements, does not, without more, constitute consumer-oriented conduct for the purposes of this statute.
Here, the amended complaint failed to sufficiently allege consumer-oriented conduct. The amended complaint did not allege that the defendants offered their services to the general consuming public, or that the defendants’ acts and practices were of a recurring nature and harmful to the public at large. Rather, the amended complaint, even liberally construed, merely alleged a private dispute unique to the parties. In all, the amended complaint failed to adequately allege that the defendants engaged in acts or practices that would have a broad impact on consumers at large. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, which alleged violation of General Business Law § 349, insofar as asserted against all of the defendants.
(Internal quotations and citations omitted).