Rock v. American Express Travel Related Services Company, Inc. et al

Filing 51

BENCH DECISION & ORDER granting in part and denying in part # 33 Motion to Amend/Correct; granting in part and denying in part # 34 Motion to Dismiss; granting in part and denying in part # 35 Motion to Dismiss. Signed by Judge Glenn T. Suddaby on 3/18/09. (lmw)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _______________________________________ DARRYL ROCK, Plaintiff, 1:08-CV-0853 (GTS/RFT) v. AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.; AEGIS RECEIVABLES MANAGEMENT INC.; and RICHARD FERRY, Defendants. _______________________________________ APPEARANCES: LAW OFFICE OF RICHARD DiMAGGIO Counsel for Plaintiff 6 Berkley Road Glenville, NY 12302 GOLDBERG & ASSOCIATES Counsel for Defendant American Express 39 Broadway New York, NY 10006 BOND SCHOENECK & KING, PLLC Counsel for Defendants Aegis and Richard Ferry One Lincoln Center Syracuse, NY 13202-13455 OF COUNSEL RICHARD L. DiMAGGIO, JR., ESQ.

JACK GROSS, ESQ.

THOMAS KELEHER, ESQ. LILLIAN A. ABBOTT-PFOHL, ESQ. SUZANNE M. MESSER, ESQ.

HON. GLENN T. SUDDABY, United States District Judge ORDER In accordance with the Court's rulings in this action made on the record after oral argument on March 18, 2009, 2008, with regard to the parties' motions in this action, it is

ORDERED that Plaintiff's motion for leave to file a "Second Amended Complaint" (Dkt. No. 33) is GRANTED in part, and DENIED in part, as set forth below; and it is further ORDERED that Defendant American Express' cross-motion to dismiss for failure to state a claim (Dkt. No. 34) is GRANTED in part, and DENIED in part, as set forth below; and it is further ORDERED that Defendants Aegis' and Richard Ferry's cross-motion to dismiss for failure to state a claim (Dkt. No. 35) is GRANTED in part, and DENIED in part, as set forth below; and it is further ORDERED that all claims as against Defendant Richard Ferry are DISMISSED in their entirety; and it is further ORDERED that Plaintiff's breach-of-contract claim is DISMISSED as against Defendant Richard Ferry only, but NOT DISMISSED as against Defendants American Express and Aegis; and it is further ORDERED that Plaintiff's negligent-hiring claim against Defendant American Express is DISMISSED; and it is further ORDERED that Plaintiff's claim under Section 349 of the New York General Business Law is DISMISSED against all defendants; and it is further ORDERED that Plaintiff's negligence claim is DISMISSED against all defendants; and it is further ORDERED that Plaintiff's claims against Defendant Aegis under the Fair Debt Collection Practices Act, including his claim of telephonic harassment, are NOT DISMISSED at this time; and it is further 2

ORDERED that Plaintiff's conversion claim is DISMISSED against all defendants; and it is further ORDERED that Plaintiff's claim of breach of fiduciary duty is DISMISSED against all defendants; and it is further ORDERED that Plaintiff's gross-negligence claim is DISMISSED against all defendants; and it is further ORDERED that Plaintiff's claim of a breach of the implied covenant of good faith and fair dealing is DISMISSED against all defendants; and it is further ORDERED that Plaintiff's claim of defamation of credit is DISMISSED against all defendants and it is further ORDERED that, within FOURTEEN (14) DAYS of the date of this Order, Plaintiff shall file, for the review and acceptance of this Court, a signed Third Amended Complaint containing only the following claims, as they are articulated in his proposed Second Amended Complaint: (1) his breach-of-contract claim against Defendants American Express and Aegis; (2) his claims against Defendant Aegis under the Fair Debt Collection Practices Act, including his claim of telephonic harassment. Dated: March 18, 2009 Syracuse, New York

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