Legal Question in Technology Law in New York

Hello, I need to know if I can sue my cell phone provider in small claims court. On 12/21/11, I called to cancel one of the two lines on my account. I was prepared to pay the $100 cancellation fee as per my contract but was told I was just past the 18 month periof of my plan and I would not incur this charge. The rep added that this time frame ended on 12/21 so she would call me on 12/22 to ensure I wouldn't get charged, which she did. So on 12/22/11, she called, I confirmed 3 times that I will not be charged and then cancelled the line. One month later, I received a bill for the cancellation. My provider, via 2 letters is refusing to adhere to adhere to the rep's offer or listen to the taped calls! I feel defrauded. Can I sue them?

Asked on 3/07/12, 1:36 pm

1 Answer from Attorneys

Gerry Elman Elman Technology Law, P.C.

As a preamble, I point out that public forums such as this are not the place to obtain actionable legal advice. That can be provided only by an attorney to whom you disclose confidentially the details of your situation and engage to advise you.

So what can we talk about here? Well, we can point out the various issues that you should ask your attorney to consider, whenever you do seek such advice.

In one sense, sure there's nothing to prevent you from "suing" the cell phone provider except for the need to go to your local small claims court, fill out a complaint form, and pay the filing fee. That means that yes, you can start a lawsuit with an allegation that the small claims court has jurisdiction over the company and the subject matter of the suit and that your contract has been breached. Will you win? I dunno. That depends on the facts, including the wording of the agreement with the provider and maybe some other items that you didn't mention. To get an idea of what it might all be about, you can look at some of the Small Claims Court tv shows. Or read a copy of the Small Claims Court book published by Nolo Press.

Be aware that whether or not the agent you spoke with had authority to make a contractually binding commitment on behalf of the company could be in dispute. But you'd presumably counter that you took action to close the account on that date only on reliance on the agent's statements, and that the action that they say gives rise to the "penalty" charge was conditioned on its not triggering the "early termination" clause.

In many states, including Pennsylvania where I happen to be sitting, it is unlawful to record a phone conversation without the concurrence of all parties. And if it were done anyway, the recording would be inadmissible as evidence in court. Other states, such as New York, don't prohibit such recordings if at least one party to the conversation (namely, you) okayed that the recording was being made.

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Answered on 3/07/12, 2:56 pm

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