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A company deluged with misdialed calls because its number closely resembles another company’s has no cause of action against the second company, an appeals panel has held. The Appellate Division, 3rd Department, said it is “unfortunate” that an employee assistance firm called Employee Network lost business and that its clients are inconvenienced. But the justices agreed there is no cause of action. There is no indication that the second company was responsible for the massive numbers of misdialings, the court found. Employee Network Inc. v. Faircall Corp., 95504, involves two companies with unrelated businesses but phone numbers that are almost the same when translated into letters of the alphabet. Employee Network provides counseling services to 120,000 employees of 200 businesses. Its clients reach the company through (800) 327-2255. That translates to 800-EAP-CALL. (EAP stands for employee assistance programs.) The company has been using that number for 15 years. Faircall Corp. operates a discount long-distance telephone service accessed by dialing (800) 324-7225, which differs from Employee Network’s by only two digits. It has been in use for 10 years and is marketed under the mnemonic 1-800-FAIRCALL. The one-letter error of dialing FAR-CALL instead of FAIR-CALL translates to Employee Network’s EAP-CALL. After Faircall conducted an advertising campaign promoting its number, Employee Network started getting loads of misdialed calls. That damaged Employee Network’s relationships with its answering service and customers and increased its phone bill, it said. Employee Network went to court hoping to recover damages and forcing Faircall to stop advertising FAIR-CALL. It lost at the trial court level, and that decision has been upheld. Writing for a unanimous panel, 3rd Department Justice Anthony T. Kane observed that the two companies have no relationship except for similar phone numbers. He said Faircall did nothing to cause the trouble, such as making a typographical error. It cannot be held liable for the mistakes of third-party dialers, he wrote. “Defendants had no duty to protect plaintiff from the actions of third parties, namely massive numbers of customers allegedly misdialing and overwhelmingly reaching plaintiff’s number with the brunt of those misdialed calls,” Kane wrote. “Although it is unfortunate that plaintiff’s business has suffered, Supreme Court properly dismissed this action because defendants did not owe plaintiff any duty.” Joining were Justices Edward O. Spain, Anthony J. Carpinello, Carl J. Mugglin and Robert S. Rose. Amy Shapiro of Hinman, Howard & Kattell in Binghamton argued for Employee Network. Gary W. Farneti of Levene, Gouldin & Thompson in Binghamton appeared for Faircall.

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