PAUL PROFETA VS. TOWN SPORTS INTERNATIONAL LIVINGSTON,ET AL.(DC-6077-15, ESSEX COUNTY AND STATEWIDE)
A-1805-15T4
| N.J. Super. Ct. App. Div. | Nov 17, 2017Background
- Profeta was a member of New York Sports Club (NYSC) on a "passport" plan paying $95.23/month billed to his credit card.
- In November 2014 he agreed with GM Saul Concepcion to switch to a "premier" plan at $32.05/month; the change could not be applied in the system until February and the reduced charge began March 1.
- NYSC billed Profeta at the higher rate for December, January and February; Concepcion attempted internal corrections and emailed for a credit in April 2015.
- Profeta filed a Special Civil Part complaint (threatening suit by April 24) and sought refunds; NYSC processed partial credits and ultimately credited December and January but not February, leaving $60.18 claimed due.
- Profeta asserted Consumer Fraud Act (CFA) violations, unjust enrichment, and breach of contract; the trial court awarded $60.18 for breach of contract and dismissed the CFA and other claims.
- On appeal, Profeta challenged the CFA dismissal and denial of reconsideration; the Appellate Division affirmed, deferring to trial findings that the conduct evidenced incompetence rather than fraudulent intent and that the alleged deceptive advertisement was not the cause of his loss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NYSC violated the CFA via deceptive advertising ("$19.95/month") | Profeta: advertisement was "bait-and-switch" and deceptive | NYSC: Profeta rejected the $19.95 plan; his loss did not stem from the ad | Court: No CFA violation; no causal link between ad and Profeta's ascertainable loss |
| Whether NYSC violated the CFA by overcharging and delaying refund | Profeta: overcharges and delayed partial refund show unconscionable practice/fraud | NYSC: billing errors and system glitches show incompetence, not intent to defraud | Court: No CFA violation; trial credit given to Concepcion's credible explanations |
| Whether Profeta's filing before his self-imposed deadline affected CFA claim | Profeta: irrelevant; pre-suit demand not required under CFA | NYSC: Profeta's premature suit undermines his conduct/damages claim | Court: Consideration of the deadline was immaterial because no unlawful practice was proven; Bosland does not require pre-suit demand here |
| Whether trial judge's courtroom demeanor deprived parties of fair trial | Profeta: judge's conduct prejudiced him | NYSC: judge's comments maintained decorum and efficiency | Court: No reversible error; stern remarks did not reflect bias |
Key Cases Cited
- D'Agostino v. Maldonado, 216 N.J. 168 (2013) (standard of appellate review for bench-trial factual findings)
- Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474 (1974) (appellate deference to trial court factual findings)
- Bosland v. Warnock Dodge, Inc., 197 N.J. 543 (2009) (elements of Consumer Fraud Act and discussion of ascertainable loss and pre-suit demand)
- Cox v. Sears Roebuck & Co., 138 N.J. 2 (1994) (definitions and categories of unlawful practices under the CFA)
- Fenwick v. Kay Am. Jeep, Inc., 72 N.J. 372 (1977) (capacity to mislead as key to deception under the CFA)
- Weinberg v. Sprint Corp., 173 N.J. 233 (2002) (ascertainable loss as prerequisite for a private CFA action)
- Kugler v. Romain, 58 N.J. 522 (1971) (good faith and fair dealing principles referenced in CFA context)