That brings us to the more pressing inquiry as to whether defendants' practices involved consumer goods or services. The Code defines "consumer goods, services, credit and debts" as those used "primarily for personal, household or family purposes" (Consumer Protection Law [Administrative Code] § 20- 701[c]). In arguing that a house is not a consumer good or service, defendants claim that sustaining the complaint would result in an unwarranted extension of the Consumer Protection Law to include real estate transactions.

In support of their position, defendants contrast the City Code provision with the State's consumer protection statute (General Business Law §  349). While the City's Code refers to "consumer goods or services," GBL § 349 is far broader in its prohibition of "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state * * *" (GBL § 349[a]) (emphasis added). Accordingly -- and, as defendants point out, not surprisingly -- Appellate Division cases have interpreted GBL § 349 to cover real estate transactions (see, e.g., Latiuk v Faber Constr. Co., 269 AD2d 820 [4th Dept 2000] [applying § 349 to cover the sale of a home]; Bd. of Mgrs. of Bayberry Greens Condominium v Bayberry Greens Assoc., 174 AD2d 595 [2d Dept 1991] [applying GBL § 349 to sales of condominium units]; see also, Karlin v IVF America, Inc., , 93 NY2d 282, 290 [stating that GBL § 349 applies "on its face to virtually all economic activity"]). Based on this contrast, defendants argue that the City Code was not designed to cover their activities.

The Commissioner counters by asserting that the conduct alleged in the complaint did not involve the simple sale of houses. The Commissioner and amici argue that defendants offered a "package" of services in which the sale of real estate was "inextricably intertwined" with services that fall under the protections of the Consumer Protection Law. We agree with the Commissioner that a package of consumer services falls within DCA jurisdiction even though offered in the context of a real estate transaction.

Defendants correctly point out that the simple sale of a house does not involve consumer goods or services within the meaning of the Code.[1] But here we have much more. Defendants have not only sold property, but also have allegedly orchestrated a system of providing services under which prospective buyers were defrauded or misled every step along the way. The complaint charges that defendants promoted overpriced homes, promising, but often failing, to repair the properties. When buyers expressed concern about paying too much, Better Homes indicated falsely that FHA involvement with the transaction would guarantee buyer satisfaction. Further, defendants allegedly steered buyers to mortgage bankers and attorneys who had connections to Better Homes, making it unlikely that an outside influence would caution or protect the prospective buyers before closing the sale. Moreover, the complaint alleges that Fessler threatened to keep the deposit of a customer who complained about the slow pace of repairs.

Had defendants offered its consumer services without itself being the seller of the properties, there would be no question that DCA could sue to rectify the violations. Were we to hold, as defendants urge, that the Consumer Protection Law did not cover such allegations, we would effectively insulate fraudulent conduct from the reach of the Code whenever the conduct occurs in connection with the sale or attempted sale of a house.

We are unwilling to conclude that a program of consumer services loses its character simply because it was rendered in connection with a home sale. The Consumer Protection Law specifically defines "deceptive trade practice" to include "representations that goods or services have sponsorship [or] approval * * * that they do not have" (Consumer Protection Law [Administrative Code] § 20-701[a][1]). Defendants' alleged representations that their pre-selected attorneys and contractors were FHA approved would, if proven, violate the statute.

We note that the case comes to us in the posture of a CPLR 3211 motion to dismiss. Accepting the allegations as true, our "sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, , 43 NY2d 268, 275 [1977]). As the case proceeds further, the Trial Court will have a clearer basis on which to assess claims that defendants may raise in connection with particular causes of action. At this stage, however, we conclude that defendants' motion to dismiss must fail insofar as it is based on their challenge to the statute's application and the Commissioner's capacity to sue.

Footnotes

1  See, Black's Law Dictionary, at 694 (6th ed 1990) (defining "goods" to "include every species of personal property * * * * which are movable at the time of identification to the contract for sale . . . ." [emphasis added]); see also, Personal Property Law §  401(1) (defining "goods" to include "all chattels personal"); cf., Joseph Martin, Jr., Delicatessen, Inc. v Schumacher (52 2 105, 111 [1981] [stating that the Uniform Commercial Code "by its very terms, is limited to the sale of goods * * * (and) is therefore not applicable to real estate contracts"]).