DeWolf v. Samaritan Hospital et al

Filing 24

ORDER granting in part and denying in part Defendants' 19 Motion to Dismiss. Signed by Judge Brenda K. Sannes on 8/14/18. (rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHAEL D. DeWOLF,
Plaintiff,

1:17-cv-0277 (BKS/CFH)

v.
SAMARITAN HOSPITAL, KATHRYN E. O’BRIEN, and
OVERTON, RUSSELL, DOERR AND DONOVAN, LLP,
Defendants.
APPEARANCES:
For Plaintiff:
Stephen A. Pechenik
P.O. Box 1159
30 24th Street
Troy, NY 12180
For Defendants:
Thomas R. McCormick
Melissa M. Tobrocke
Linda L. Donovan
Overton, Russell, Doerr & Donovan, LLP
19 Executive Park Drive
Clifton Park, NY 12065
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Michael D. DeWolf brings this action against Defendants Samaritan Hospital,

Kathryn E. O’Brien, and Overton, Russell, Doerr & Donovan, LLP (“ORDD”), alleging that they
engaged in unlawful credit collection practices in violation of federal and state law, and
asserting: (1) a claim for violations of the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. §§ 1692d, 1692e, 1692f; (2) a claim under section 349 of the New York General Business

Law (“GBL”); and (3) a claim for abuse of process under New York law. (See Dkt. No. 16, ¶¶ 5–
9, 30–47). Plaintiff seeks $250,000 in money damages. (See id. at 10). After this Court dismissed
the original Complaint without prejudice on December 7, 2017, (see Dkt. No. 15), Plaintiff filed
an Amended Complaint on January 4, 2018, (Dkt. No. 19), and Defendants again moved to
dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
(Dkt. No. 19). Plaintiff opposes dismissal. 1 (See Dkt. No. 21). For the reasons below, the motion
to dismiss is granted in part and denied in part.
II.

FACTUAL BACKGROUND
The Court presumes the parties’ familiarity with its December 7, 2017 decision, which

recites the factual background of this case. (See Dkt. No. 15, at 2–3). To the extent that the
Amended Complaint adds any relevant factual allegations, the Court addresses any such
additional facts in the course of discussing the parties’ arguments below.
III.

STANDARD OF REVIEW
To survive a motion to dismiss, “a complaint must provide ‘enough facts to state a claim

to relief that is plausible on its face.’” Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d
129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Although a complaint need not contain detailed factual allegations, it may not rest on mere
labels, conclusions, or a formulaic recitation of the elements of the cause of action, and the
factual allegations ‘must be enough to raise a right to relief above the speculative level.’”
Lawtone-Bowles v. City of New York, No. 16-cv-4240, 2017 WL 4250513, at *2, 2017 U.S. Dist.
LEXIS 155140, at *5 (S.D.N.Y. Sept. 22, 2017) (quoting Twombly, 550 U.S. at 555). The Court
must accept as true all factual allegations in the complaint and draw all reasonable inferences in
1

In opposition to the motion to dismiss, Plaintiff submitted an attorney affirmation but did not file a memorandum
of law. (See Dkt. No. 21). Defendants did not file a reply. The parties’ submissions are almost entirely devoid of
citations to legal authorities.

2

the plaintiff’s favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI
Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). When deciding a motion to
dismiss, the Court’s review is ordinarily limited to “the facts as asserted within the four corners
of the complaint, the documents attached to the complaint as exhibits, and any documents
incorporated in the complaint by reference.” See McCarthy v. Dun & Bradstreet Corp., 482 F.3d
184, 191 (2d Cir. 2007).
IV.

DISCUSSION
A.

FDCPA Claim

“Congress enacted the FDCPA ‘to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from using abusive debt collection
practices are not competitively disadvantaged, and to promote consistent State action to protect
consumers against debt collection abuses.’” Vincent v. Money Store, 736 F.3d 88, 96 (2d Cir.
2013) (quoting 15 U.S.C. § 1692(e)). “To further these ends, the FDCPA ‘establishes certain
rights for consumers whose debts are placed in the hands of professional debt collectors for
collection.’” Id. (quoting DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001)).
In order to state a claim under the FDCPA, a plaintiff must establish three elements:
(1) the plaintiff must be a “consumer” who is alleged to owe a debt or the target of efforts to
collect a consumer debt; (2) the defendant must be a “debt collector”; and (3) the defendant must
have engaged in conduct violating FDCPA requirements. See Cruz v. Credit Control Servs., Inc.,
No. 17-cv-1994, 2017 WL 5195225, at *4, 2017 U.S. Dist. LEXIS 186125, at *8 (E.D.N.Y. Nov.
8, 2017); see also 15 U.S.C. §§ 1692d, 1692e, 1692f (prohibiting debt collectors from engaging
in specified debt collection practices). A “debt collector” is “any person who uses any
instrumentality of interstate commerce or the mails in any business the principal purpose of
which is the collection of any debts, or who regularly collects or attempts to collect, directly or
3

indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). As a
general rule, “creditors are not subject to the FDCPA.” Vincent, 736 F.3d at 97.
The FDCPA prohibits various practices. As relevant here, a “debt collector may not
engage in any conduct the natural consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt.” 15 U.S.C. § 1692d. Further, a “debt collector
may not use any false, deceptive, or misleading representation or means in connection with the
collection of any debt.” Id. § 1692e. One such prohibited misrepresentation is the “false
representation of . . . the character, amount, or legal status of any debt.” Id. § 1692e(2)(A).
Additionally, a “debt collector may not use unfair or unconscionable means to collect or attempt
to collect any debt.” Id. § 1692f. The Second Circuit has explained that “not every technically
false representation by a debt collector amounts to a violation of the FDCPA.” Gabriele v. Am.
Home Mortg. Servicing, Inc., 503 F. App’x 89, 94 (2d Cir. 2012). Courts have to “evaluate
claims under the FDCPA according to how the ‘least sophisticated consumer’ would understand
the communication.” Id.
1.

Samaritan Hospital

Defendants move to dismiss any FDCPA claim against Samaritan Hospital on the ground
that it is not a debt collector within the meaning of the FDCPA. (See Dkt. No. 19-3, at 4). 2
Plaintiff does not respond to that argument. The Amended Complaint, like the Complaint, is
devoid of any facts indicating that Samaritan Hospital is a debt collection business or an entity
that regularly collects or attempts to collect debts due another. Even drawing all inferences in
Plaintiff’s favor, the state court complaint which Plaintiff attached to his Amended Complaint
indicates that Samaritan Hospital sought to collect a debt allegedly owed to Samaritan Hospital
2

The Court notes that the Amended Complaint does not name Samaritan Hospital as a defendant in the FDCPA
count but does include numerous factual allegations regarding Samaritan Hospital.

4

itself, not debt owed to another. Accordingly, any FDCPA claim against Samaritan Hospital is
dismissed.
2.

ORDD and Kathryn O’Brien

Defendants seek dismissal of the FDCPA claim against ORDD and O’Brien on the
ground that the allegations in the Amended Complaint are “conclusory.” 3 (Dkt. No. 19-3, at 4–
6). As Plaintiff asserts violations of several provisions of the FDCPA, the Court must examine
the sufficiency of the Amended Complaint’s allegations as to each asserted violation.
a.

Violation of § 1692e

This action rests on two allegations of misconduct by ORDD and O’Brien: first,
commencement and prosecution of the debt collection action in state court, and second, reporting
of Plaintiff’s purported debt to credit reporting agencies. (See id. ¶¶ 34–35, 37). Although
Plaintiff does not specify which subsections of § 1692e ORDD and O’Brien allegedly violated,
the Court construes the Amended Complaint as implicating the two provisions discussed below.
i.

§ 1692e(2)(A)

Section 1692e(2)(A) prohibits a debt collector from making a “false representation”
concerning “the character, amount, or legal status” of a debt in connection with the collection of
3

In their motion, Defendants rely in part on facts outside the pleadings. (See id. at 2–3 (summarizing “material
facts” with citations to affidavits by O’Brien and ORRD attorney Brian Strohl)). Moreover, Defendants base some
of their arguments on Plaintiff’s supposed lack of “evidentiary proof” to support his allegations, (id. at 1; see also id.
at 5–6 (repeatedly referring to Plaintiff’s lack of “a scintilla of proof,” “evidentiary support,” or “factual evidence”)).
It is well settled that, on a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court may only
consider the facts asserted within the four corners of the complaint, along with documents attached to, incorporated
by reference in, or integral to the pleading. See Yung v. Lee, 432 F.3d 142, 146 (2d Cir. 2005). Indeed, a plaintiff
need not produce evidence at the pleading stage, and a court must accept plaintiff’s nonconclusory allegations as
true and draw all reasonable inferences in his favor. Rogers v. City of Troy, 148 F.3d 52, 60 (2d Cir. 1998) (“While
it may be that the plaintiffs can produce no evidence in support of their allegations, we must accept them as true at
the 12(b)(6) stage.”). The sole case cited by Defendants in their memorandum of law, (Dkt. No. 19-3, at 5), is Lena
v. Cach, LLC, No. 14-cv-1805, 2015 WL 4692443, at *2, 2015 U.S. Dist. LEXIS 103007, at *5 (N.D. Ill. Aug. 6,
2015), which recites the Twombly/Iqbal pleading standard that “[a]llegations in the form of legal conclusions, as
well as threadbare recitals of the elements of a cause of action, supported by conclusory statements, do not suffice.”
Contrary to Defendants’ characterization, that case does not stand for the proposition that “evidentiary support” is
required to state a FDCPA claim. (Dkt. No. 19-3, at 5). Thus, the Court rejects Defendants’ arguments to the extent
they rely on matters outside the pleadings or fault the Complaint for a supposed lack of evidentiary support.

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the debt. Defendants have not cited any authority exempting statements made, as here, in the
course of a debt collection action filed in state court, and the Court has not found authority to
that effect. See, e.g., Atwood v. Cohen & Slamowitz LLP, 716 F. App’x 50, 52 n.1 (2d Cir. 2017)
(“We assume without deciding that communications made within a lawsuit . . . can be the basis
for a violation of the FDCPA.”); Gabriele v. Am. Home Mortg. Servicing, Inc., 503 F. App’x 89,
95 (2d Cir. 2012) (noting that “statements made and actions taken in furtherance of a legal action
are not, in and of themselves, exempt from liability under the FDCPA”). The Court notes that a
misrepresentation of the “legal status” of the debt is actionable under § 1692e(2)(A), and that the
Complaint alleges Defendants filed an action to collect on a debt not owed. Further, because
§ 1692e(2)(A) imposes strict liability, a plaintiff need not allege that the debt collector knew that
the debt was not owed. 4 See Stewart v. Allied Interstate, Inc., No. 10-cv-2141, 2011 WL
2199716, at *1 n.1, 2011 U.S. Dist. LEXIS 60239, at *2 n.1 (E.D.N.Y. June 6, 2011) (noting that
the plaintiff need not allege the defendant’s “knowledge to state a claim” under the FDCPA).
The Amended Complaint states that “the debt alleged in the City Court verified
Complaint was baseless,” (Dkt. No. 16, ¶ 14), that Plaintiff “was not indebted” to Samaritan
Hospital, (id. ¶ 41), that none of the Defendants notified Plaintiff of “any alleged indebtedness”
prior to filing the state court action, (id. ¶ 13), and that Defendants sought “to obtain payment of
a non-existent debt,” (id. ¶ 47). At this stage of the proceedings, the Court must accept as true the
allegation that Plaintiff did not owe the debt that Defendants sought to collect. The Amended
Complaint also asserts that ORDD and O’Brien are debt collectors for Samaritan Hospital, and

4

However, the debt collector may assert the affirmative defense that the violation was the result of a mistake. See
Russell v. Equifax A.R.S., 74 F.3d 30, 33–34 (2d Cir. 1996) (explaining that, although “a consumer need not show
intentional conduct by the debt collector to be entitled to damages,” “a debt collector may escape liability if it can
demonstrate by a preponderance of the evidence that its ‘violation [of the Act] was not intentional and resulted from
a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error’”
(alteration in original) (quoting 15 U.S.C. § 1692k(c))).

6

that they filed an action in state court against Plaintiff seeking to collect on the aforementioned
“non-existent” debt. (Id. ¶¶ 12, 17, 19, 31, 32, 36). Taken together, these allegations suffice to
state a claim under § 1692e(2)(A).
ii.

§ 1692e(8)

Section 1692e(8) prohibits “communicat[ions] or threat[s] to communicate to any person
credit information which is known or which should be known to be false, including the failure to
communicate that a disputed debt is disputed.” The provision “does not create an affirmative
duty to communicate,” but “it does mandate that, if a debt collector elects to communicate credit
information about a consumer, it must not omit a piece of information that is always material.”
Plummer v. Atl. Credit & Fin., Inc., 66 F. Supp. 3d 484, 490 (S.D.N.Y. 2014) (internal quotation
marks omitted).
Defendants argue that the Amended Complaint contains only conclusory allegations that
ORDD and O’Brien knew or should have known that Plaintiff did not owe the debt they reported
to credit agencies. (Dkt. No. 19-3, at 4–6). Defendants contend that Plaintiff “is completely
ignorant as to the operation of the billing department of Samaritan Hospital” and thus does not
have any basis for alleging the existence of “deficiencies in the review and assessment of
accounts receivable” by Samaritan Hospital. (Id. at 5). Likewise, Defendants maintain, the
allegation that O’Brien was “aware of the great number of mistakes regarding patients’
indebtedness made by Samaritan Hospital in the recent past” is “specious” and “completely
unfounded.” (Id. at 4). As for the allegation that ORDD and O’Brien “failed to perform ‘any
sort’ of due diligence prior to commencing the action in Troy City Court,” Defendants deem it to
be “another conclusory statement by plaintiff, unsupported by any facts at all,” (id. at 6), and
note that Plaintiff is “ignorant of the interactions between ORDD and its clients on individual
files, and between attorneys at ORDD concerning those files,” (id. at 5). Lastly, Defendants
7

argue that Plaintiff “fails to make any non-conclusory statements or factual allegations . . . that
[ORDD and O’Brien’s] report of the underlying debt to the credit reporting agencies was done in
bad faith, or was false or misleading.” (Id. at 5).
The Court agrees that Plaintiff’s allegations are conclusory. First, the Amended
Complaint does not state the basis for Plaintiff’s allegations that Samaritan Hospital “failed to
review and assess its files and accounts receivable to ascertain what bills for professional
hospital services exist,” what bills “have been paid,” and what bills “have been mistakenly
applied to a patient incorrectly.” (Dkt. No. 16, ¶ 15). Second, and more to the point, the
Amended Complaint does not allege nonconclusory facts from which the Court could infer that
ORDD and O’Brien were “aware of the great number of mistakes regarding patients’
indebtedness made by Samaritan Hospital” or that ORDD and O’Brien failed to “perform[] any
or sufficient due diligence” before reporting the debt to credit reporting agencies. (Id. ¶¶ 16–17,
26). Neither can the Court impute to ORDD or O’Brien actual or constructive knowledge of
falsity based on Plaintiff’s allegation that he did not owe the debt. Indeed, the Amended
Complaint provides no facts concerning the underlying events—for example, whether he
received services from Samaritan Hospital and whether he or his insurer paid for such services—
from which the Court could draw a reasonable inference that ORDD and O’Brien knew or
should have known that Plaintiff did not owe the debt. 5 Cf. Ashcroft v. Iqbal, 556 U.S. 662, 686–
87 (2009) (explaining that, although knowledge and other conditions of a person’s mind may be
alleged generally, Rule 9 “does not give [a party] license to evade the less rigid-though still
operative-strictures of Rule 8”); Meijer, Inc. v. Rochester Drug Co-Operative, Inc. (In re

5

As for the allegation made upon information and belief that Defendants “continued and continue to report
negatively to the credit reporting agencies regarding [Plaintiff] after tendering the . . . Stipulation of Discontinuance
with prejudice” in the state collection case, (id. ¶ 26), the Complaint does not indicate the basis for that belief.
Further, there is no allegation that Defendants failed to communicate the debt as disputed.

8

DDAVP Direct Purchaser Antitrust Litig.), 585 F.3d 677, 695 (2d Cir. 2009) (“Although Rule
9(b) permits knowledge to be averred generally, plaintiffs must still plead the events which they
claim give rise to an inference of knowledge.” (quoting Devaney v. Chester, 813 F.2d 566, 568
(2d Cir. 1987))). Given these deficiencies, Plaintiff has failed to state a claim under § 1692e(8).
b.

Violation of § 1692d

Section 1692d provides that a “debt collector may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any person in connection with the collection
of a debt.” Id. § 1692d. This provision lists as examples of harassment the “use or threat of use of
violence,” “the use of obscene or profane language,” the “publication of a list of consumers who
allegedly refuse to pay debts, except to a consumer reporting agency,” the “advertisement for
sale of any debt to coerce payment of the debt,” and making repeated phone calls. Id. The mere
filing of a debt collection action, however, does not constitute the type of harassment prohibited
by § 1692d. See Lane v. Fein, Such & Crane, LLP, 767 F. Supp. 2d 382, 390 (E.D.N.Y. 2011)
(rejecting claim that filing debt collection action in state court violated § 1692d); see also Harvey
v. Great Seneca Fin. Corp., 453 F.3d 324, 330–31 (6th Cir. 2006) (“Any attempt to collect a
defaulted debt will be unwanted by a debtor, but [filing a debt collection action against a debtor]
cannot be said to be an abusive tactic under the FDCPA.”). Further, Plaintiff does not cite any
authority for the proposition that reporting a debt (even one which is allegedly not due) to a
credit agency rises to the level of harassment actionable under § 1692d. Indeed, by excluding
reporting to “consumer reporting agenc[ies]” from its coverage, the text of that provision
suggests that such credit reporting “is routine and expressly permitted under § 1692d(3), and is
among the options a debt collector may choose to encourage repayment of a debt.” Fashakin v.
Nextel Commc’ns, No. 05-cv-3080, 2009 WL 790350, at *9, 2009 U.S. Dist. LEXIS 25140, at
*32 (E.D.N.Y. Mar. 25, 2009); cf. also Poulin v. Thomas Agency, 760 F. Supp. 2d 151, 159 (D.
9

Me. 2011) (on summary judgment, rejecting a claim that a debt collector violated § 1692d and
other provisions of the FDCPA by reporting disputed debt to credit agencies, despite the fact that
the consumer challenged the validity of the debt). Consequently, the Court finds that Plaintiff has
failed to state a § 1692d claim.
c.

Violation of § 1692f

Section 1692f prohibits unfair debt collection practices. It also provides a nonexclusive
list of practices deemed “unfair or unconscionable,” including, inter alia, debt collectors
collecting any amount not “expressly authorized by the agreement creating the debt or permitted
by law,” depositing a postdated check prior to the date inscribed on such check, and
communicating with a consumer regarding a debt by postcard. 15 U.S.C. § 1692f. That section,
however, was “enacted specifically ‘to catch conduct not otherwise covered by the FDCPA,’
because Congress was ‘[c]ognizant that it could not anticipate every improper practice used by
debt collectors.’” Okyere v. Palisades Collection, LLC, 961 F. Supp. 2d 522, 530 (S.D.N.Y.
2013) (alteration in original) (quoting Johnson v. BAC Home Loans Servicing, LP, 867 F. Supp.
2d 766, 781–82 (E.D.N.C. 2011)).
Plaintiff does not specify which alleged misconduct violates § 1692f. If his claim is that
the filing of an action in state court seeking to collect a nonexistent debt was an unfair debt
collection practice, that conduct is already covered by § 1692e(2)(A). See Foti v. NCO Fin. Sys.,
Inc., 424 F. Supp. 2d 643, 667 (S.D.N.Y. 2006) (dismissing § 1692f claim where complaint
failed to “identify any misconduct beyond that which Plaintiffs assert violate other provisions of
the FDCPA”). If his claim is that the reporting of a nonexistent debt to credit agencies was the
§ 1692f violation, that conduct is also covered by under § 1692e(8); as discussed above,
however, his allegations are insufficient to state a claim under that provision. Accordingly, the
§ 1692f claim must be dismissed. See Lautman v. 2800 Coyle St. Owners Corp., No. 14-cv-1868,
10

2014 WL 4843947, at *12, 2014 U.S. Dist. LEXIS 137454, at *38 (E.D.N.Y. Sept. 26, 2014)
(“To the extent that plaintiff’s claims under § 1692f rely on the same alleged litigation
misconduct raised under § 1692e, those claims must be dismissed for the reasons stated above.”).
B.

New York General Business Law § 349 Claim

Defendants seek dismissal of Plaintiff’s claim under section 349 of the New York
General Business Law (“GBL”), which prohibits “deceptive acts or practices in the conduct of
any business, trade or commerce in the furnishing of any service in this state.” N.Y. Gen. Bus.
Law § 349(a). A claim under GBL § 349 has three elements: (1) the defendant engaged in
“consumer-oriented conduct”; (2) the conduct is “materially misleading”; and (3) the plaintiff
“suffered injury as a result of the allegedly deceptive act or practice.” Nick’s Garage, Inc. v.
Progressive Cas. Ins. Co., 875 F.3d 107, 124 (2d Cir. 2017) (quoting City of New York v.
Smokes-Spirits.com, Inc., 12 N.Y.3d 616, 621 (2009)). A “plaintiff must prove ‘actual’ injury to
recover under the statute, though not necessarily pecuniary harm.” Stutman v. Chem. Bank, 95
N.Y.2d 24, 29 (2000).
Defendants seek dismissal of the GBL § 349 claim because it relies on conclusory
allegations. (Dkt. No. 19-3, at 6–7). Neither party, however, has briefed whether the conduct
alleged in the Amended Complaint—the filing and prosecution of the debt collection action in
state court, as well as the reporting of the debt to credit agencies—is consumer-oriented, is
materially misleading, or has caused Plaintiff to suffer “actual injury.” Accordingly, the Court
declines at this time to consider dismissal of Plaintiff’s GBL § 349 claim.
C.

Abuse of Process Claim

Lastly, Defendants move to dismiss Plaintiff’s abuse-of-process claim. Under New York
law, abuse of process is “the misuse or perversion of regularly issued legal process for a purpose
not justified by the nature of the process.” Bd. of Educ. v. Farmingdale Classroom Teachers
11

Ass’n, Inc., 38 N.Y.2d 397, 400 (1975). “Abuse of process has three essential elements: (1)
regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or
justification, and (3) use of process in a perverted manner to obtain a collateral objective.”
Ettienne v. Hochman, 83 A.D.3d 888, 888 (2d Dep’t 2011) (quoting Curiano v. Suozzi, 63
N.Y.2d 113, 116 (1984)).
Defendants argue that the allegation that they filed the debt collection action in state court
with the intent to harm Plaintiff by using process to obtain payment of a nonexistent debt is
“untrue.” (Dkt. No. 19-3, at 7). They note that Plaintiff answered the debt collection complaint,
that “a decision was made to withdraw the action,” and that Plaintiff obtained “the relief sought,
. . . dismissal of the complaint.” (Id.). In light of these developments, Defendants contend that
there was no “perversion of the process.” (Id.). While paying no consideration to those factual
assertions made by Defendants that are outside the pleadings, the Court agrees that Plaintiff has
failed to a state a claim for abuse of process under New York law. The Amended Complaint is
devoid of any allegations from which the Court could infer that the state-court debt collection
action lacked an “economic or social justification” or that Defendants were “seeking some
collateral advantage or corresponding detriment to the plaintiff which is outside the legitimate
ends of the process.” Farmingdale, 38 N.Y.2d at 403. As alleged in the Amended Complaint,
Defendants ostensibly brought the state-court action to collect on a debt. (See Dkt. No. 16, ¶¶ 12,
23). Even if the debt was nonexistent, the purpose of the action was to collect on the purported
debt; there is no allegation that it was to achieve a collateral objective. “[W]here, as here, the
process . . . was used for the purpose for which it was intended . . . an action for abuse of process
does not lie.” Klass v. Frazer, 290 F. Supp. 2d 425, 427 (S.D.N.Y. 2003). Accordingly,
Plaintiff’s claim for abuse of process must be dismissed.

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V.

CONCLUSION
For these reasons, it is hereby
ORDERED that Defendants’ motion to dismiss the Amended Complaint for failure to

state a claim (Dkt. No. 19) is DENIED in part to the extent that Plaintiff’s FDCPA claim (first
cause of action) for alleged violations of 15 U.S.C. §§ 1692e(2)(A) and Plaintiff’s GBL § 349
claim (second cause of action) may proceed; and it is further
ORDERED that Defendants’ motion to dismiss the Amended Complaint for failure to
state a claim (Dkt. No. 19) is GRANTED in part to the extent that Plaintiff’s FDCPA claim
(first cause of action) for alleged violations of 15 U.S.C. §§ 1692d, 1692e(8), and 1692f, as well
as Plaintiff’s claim for abuse of process under New York law (third cause of action), are
DISMISSED with prejudice; 6 and it is further
ORDERED that Defendants’ motion to dismiss the Amended Complaint for failure to
state an FDCPA claim (Dkt. No. 19) as to Defendant Samaritan Hospital is GRANTED, and that
any FDCPA claim against Defendant Samaritan Hospital is DISMISSED with prejudice; and it
is further
ORDERED that Defendants’ motion to dismiss the Amended Complaint for failure to
state a claim (Dkt. No. 19) is otherwise DENIED.
IT IS SO ORDERED.
Dated: August 14, 2018
Syracuse, New York

6

Plaintiff has not requested leave to amend his pleading. Moreover, the Court has already afforded Plaintiff an
opportunity to amend. In these circumstances, the Court finds that justice does not require permitting Plaintiff to
amend again. See Fed. R. Civ. P. 15(a)(2). For these reasons, the Court dismisses the specified claims with
prejudice.

13