Savage v. Beiersdorf Inc.

Filing 86

ORDER granting Defendant's 80 Motion for Summary Judgment; and denying Plaintiff's 83 Motion for Summary Judgment --- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Defendant's motion for summary judgmen t is granted in its entirety and Plaintiff's cross-motion for summary judgment is denied in its entirety. Accordingly, this action is dismissed in its entirety, with prejudice. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that a ny appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 9/30/2016. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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AARON SAVAGE, pro se,
:
:
Plaintiff,
:
:
-against:
:
BEIERSDORF INC.,
:
:
Defendant.
:
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DORA L. IRIZARRY, Chief Judge:

MEMORANDUM AND ORDER
13-cv-0696 (DLI)(LB)

On December 10, 2012, pro se plaintiff Aaron Savage (“Plaintiff”) commenced the instant

action against defendant Beiersdorf Inc. (“Defendant”) in the Supreme Court of the State of New
York, County of New York, asserting claims of negligence, negligent misrepresentation, false
advertising, and failure to warn due to injuries he sustained after using Defendant’s body wash gel.
(See Complaint (“Compl.”), attached to Notice of Removal, Dkt. Entry No. 1.) On January 8,
2013, Defendant removed the matter to this Court pursuant to 28 U.S.C. §§ 1332 and 1441. (Id.)
Defendant then moved to dismiss the instant action in its entirety pursuant to Rules 8(a) and
12(b)(6) of the Federal Rules of Civil Procedure. (See Motion to Dismiss, Dkt. Entry No. 4.) This
Court granted Defendant’s motion to dismiss without prejudice and with leave for Plaintiff to file
an amended complaint correcting the deficiencies noted by the Court. (See September 30, 2013
Order Granting Motion to Dismiss (“September 30, 2013 Order”), Dkt. Entry No. 21.)
On November 4, 2013, Plaintiff filed an amended complaint sounding in negligence and
strict products liability. (See Amended Complaint (“Am. Compl.”), Dkt. Entry No. 22.) Defendant
moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff opposes
and cross-moves for summary judgment. For the reasons set forth below, Defendant’s motion for
summary judgment is granted and Plaintiff’s cross-motion for summary judgment is denied.

BACKGROUND
Plaintiff purchased Nivea For Men Cool Body Wash with menthol (“the Nivea product”)
from a Walgreens store in Elmhurst, New York in March 2011. (Deposition of Aaron Savage (“Pl.
Dep.”) at 30:15-17, Exhibit G, Dkt. Entry No. 80.) Plaintiff claims that, several weeks after first
bathing with the Nivea product, he experienced a severe burning sensation in his genital area. (Id.
at 40:7-41:3, 42:5-7.) He also claims that the Nivea product darkened the color of his penis and
caused him substantial pain throughout the day. (Id. at 44:17-25, 45:19-24.) Plaintiff experienced
bleeding from his penis within the first few months of using the Nivea product. (Id. 46:9-23,
48:13-18.) Notwithstanding these anatomical maladies, he continued to use the Nivea product and
suspected that a sexually transmitted disease (“STD”) may be causing the pain. (Plaintiff’s CrossMotion for Summary Judgment (“Pl. Cross-Motion”) at 3, Dkt. Entry No. 83.)
The first time that Plaintiff sought medical attention for these infirmities was during a visit
to Gouverneur Health Medical Center (“Gouverneur”). (Id. at 49:6-16.) Plaintiff did not mention
his use of the Nivea product to the treating physician at Gouverneur, but he was tested for an STD
while there. (Id. at 50:10-22.) Although the STD test proved negative, the treating physician
opined that Plaintiff’s injuries may be the result of his sexual activity. (Id. at 50:25-51:3, 51:1852:11.)
Prior to and during Plaintiff’s use of the Nivea product, he was sexually active with one
woman.1 (Id. at 52:12-18.) During that relationship and after using the Nivea product, Plaintiff
was diagnosed with a urinary tract infection at Gouverneur. (Id. at 54:12-16.) In or about the
summer of 2011, doctors at Reston Hospital Center in Virginia diagnosed Plaintiff with prostatitis,

1

Although Plaintiff, in his deposition, purports to have had consistent sexual intercourse with only one woman
prior to and during his use of the Nivea product, the Gouverneur medical records, as noted below, indicate that he
engaged in unprotected sex with two female partners in January 2013. (Gouverneur Medical Records, Exhibit I, Dkt.
Entry No. 80.)

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which is swelling and inflammation of the prostate gland. (Id. at 71:4-9.) Plaintiff also stated that
he suffered from hypospadias, which is a male birth defect in which the opening of the urethra that
carries urine from the body is located on the underside of the penis instead of the tip. (Id. at 84:1925; Memorandum of Law in Support of Defendant’s Motion for Summary Judgment (“Def. Mem.
of Law”) at 8, n. 1, Dkt. Entry No. 80.) He was aware of the fact that his hypospadiac penile
anatomy made him more susceptible to infection. (Pl. Dep. at 85:12-16.) Plaintiff further admitted
that doctors informed him that the injuries he sustained may have been sexually transmitted by the
woman with whom he had been sexually active at the time of his Nivea product use. (Id. at 94:2295:11.)
Plaintiff is not certain whether he had been tested for sensitivity to any of the ingredients
that comprise the Nivea product, but believes that he had been because physicians allegedly
narrowed the provenance of his injuries to use of the Nivea product. (Id. at 117:18-118:2, 118:21119:6.) Plaintiff characterized the frequency of his genital pain as monthly. (Id. at 121:23-122:2.)
He further described the pain as occurring randomly and lasting for either days or weeks at a time
with inconsistent levels of severity. (Id. at 122:3-5, 124:1-11, 140:8-23.) Plaintiff did not notice
if the severity of the pain correlated to his use of the Nivea product. (Id. at 141:4-7.) The burning
sensation that Plaintiff experienced after his first use of the Nivea produce subsided in 2013. (Id.
at 141:13-142:12.) Plaintiff also admitted to using other body washes prior to using the Nivea
product. (Id. at 145:4-10.) Plaintiff claims that his injuries prevented him from working, engaging
in sexual activity, exercising, eating, and sleeping. (Id. at 149:2-9.)
Plaintiff worked intermittently as a film and television production assistant in the summer
of 2013. (Id. at 13:1-13.) Plaintiff stated that he was unable to work from the spring of 2011 to
the summer of 2013 due to the injuries sustained by the Nivea product and, therefore, lost wages.

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(Id. at 13:14-18, 17:13-16.) However, he was not able to produce a calculation or estimate of his
lost wages during that time period. (Id. at 17:20-18:22.)
Plaintiff now claims that his injuries are the legal proximate result of the use of the Nivea
product and asserts the following three causes of action:

(1) strict products liability;

(2) negligence; and (3) misrepresentation. (Am. Compl. at ¶ 3.) Plaintiff specifically alleges that
Defendant’s defective manufacture and design of the Nivea product, negligent selection and
mixture of dangerous ingredients, failure to test the product on male subjects with various penile
anatomies, failure to warn of the dangers attendant to the Nivea product’s use, and negligent
marketing and advertising of the Nivea product’s functions proximately caused Plaintiff’s injuries.
(Id.) Defendant counters that Plaintiff has not proffered any factual or expert evidence to show
that the Nivea product’s ingredients were foreseeably harmful or that his penile infirmities were
proximately caused by the use of the Nivea product. (Def. Mem. of Law at 1.)
DISCUSSION
I.

Summary Judgment Standard of Review
Summary judgment is appropriate when “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “In ruling on a summary judgment motion, the district court must resolve all ambiguities,
and credit all factual inferences that could rationally be drawn, in favor of the party opposing
summary judgment and determine whether there is a genuine dispute as to a material fact, raising
an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal
quotations omitted). A fact is “material” within the meaning of Rule 56 when its resolution “might
affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). An issue is “genuine” when “the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party.” Id. To determine whether an issue is genuine, “[t]he
inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and
depositions must be viewed in the light most favorable to the party opposing the motion.” Cronin
v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v. Diebold, Inc., 369
U.S. 654, 655 (1962) (per curiam) and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d
Cir. 1989)). “[T]he evidence of the non-movant is to be believed, and all justifiable inferences are
to be drawn in his favor.” Anderson, 477 U.S. at 255. However, “[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion
for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
The moving party bears the burden of “informing the district court of the basis for its
motion, and identifying those portions of [the record] . . . which it believes demonstrates the
absence of a genuine issue of fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal
quotations omitted). Once the moving party has met its burden, “the nonmoving party must come
forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis omitted) (internal citation
omitted). The nonmoving party must offer “concrete evidence from which a reasonable juror could
return a verdict in [its] favor.” Anderson, 477 U.S. at 256. The nonmoving party may not “rely
simply on conclusory statements or on contentions that the affidavits supporting the motion are
not credible, or upon the mere allegations or denials of the nonmoving party’s pleading.” Ying
Jing Gan v. City of New York, 996 F.2d 522, 532-33 (2d Cir. 1993) (internal citations and
quotations omitted). “Summary judgment is appropriate only ‘[w]here the record taken as a whole

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could not lead a rational trier of fact to find for the non-moving party.’” Donnelly v. Greenburgh
Cent. Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir. 2012) (quoting Matsushita, 475 U.S. at 587).
In reviewing the complaint, the Court is mindful that, “[a] document filed pro se is to be
liberally construed and a pro se [pleading], however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007). Accordingly, the Court interprets the amended complaint “to raise the strongest
arguments that [it] suggest[s].” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
2006) (emphasis omitted). While the heightened pleading standards set by Twombly and Iqbal are
not necessarily dispensed with in considering pro se submissions, the court still must construe pro
se complaints liberally. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Nevertheless, this liberal
construction requirement does not absolve a pro se plaintiff of the obligation to “‘plead sufficient
facts to state a claim that is plausible on its face.’” Chukwueze v. NYCERS, 891 F. Supp.2d 443,
450 (S.D.N.Y. 2012) (quoting Bodley v. Clark, 11 Civ. 8955 (KBF), 2012 WL 3042175, at *2
(S.D.N.Y. July 23, 2012)). Because Plaintiff is a pro se litigant, the Court, in deciding this motion,
has construed Plaintiff’s papers broadly and interpreted them to raise the strongest arguments
suggested. Weixel v. Board of Education of the City of New York, 287 F.3d 138, 146 (2d Cir.
2002).
II.

Choice of Law
“In a diversity action, a district court looks to the choice-of-law principles in the forum

state.” Cacciola v. Selco Balers, Inc., 127 F. Supp.2d 175, 184 (E.D.N.Y. 2001). Here, neither
party disputes that New York law should apply to the instant action. (See generally Compl.; Pl.’s
Opp’n; Def.’s Mem.) “Where jurisdiction rests upon diversity of citizenship, a federal court sitting
in New York must apply the New York choice-of-law rules and statutes of limitations.” Stuart v.

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Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998) (citing Guar. Trust Co. v. York, 326 U.S. 99,
108-09 (1945)). In this case, Plaintiff is a resident of New York, and Defendant is a corporation
from Connecticut, and the Court has jurisdiction based on diversity of citizenship, thus, the New
York choice-of-law rules apply. (See Notice of Removal ¶¶ 3, 4, 6.) “Under New York law,
controlling effect must be given to the law of the jurisdiction which, because of its relationship or
contact with the occurrence or the parties, has the greatest concern with the specific issue raised in
the litigation.” DiBartolo v. Abbott Labs., 2012 WL 6681704, at *5 (S.D.N.Y. Dec. 21, 2012)
(internal quotations omitted). Here, Plaintiff bases his claims on New York law and events that
occurred in New York. He does not argue that any other state law should apply. Therefore, the
Court applies New York substantive law.
III.

Strict Products Liability
Under New York law, a claim of strict products liability requires a showing of a product

defect. Kosmynka v. Polaris Industries, Inc., 462 F.3d 74, 86 (2d Cir. 2006). Specifically, a
consumer has the “‘burden to show that a defect in the product was a substantial factor in causing
the injury.’” Id. (emphasis included) (quoting Fritz v. White Consolidated Industries, Inc., 306
A.D.2d 896, 898 (4th Dep’t 2003)). “A cause of action in strict products liability lies where a
manufacturer places on the market a product which has a defect that causes injury.” Id. (emphasis
included) (internal quotation marks and citations omitted). Moreover, in order to proceed on a
strict products liability claim in New York “‘in the absence of evidence identifying a specific flaw,
a plaintiff must prove that the product did not perform as intended and exclude all other causes for
the product’s failure that are not attributable to defendants.’” Riegel v. Medtronic, Inc., 451 F.3d
104, 125 (2d Cir. 2006) (quoting Speller v. Sears, Roebuck and Co., 100 N.Y.2d 38, 41 (2003)).

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Defendant argues that the medical evidence fails to show that the Nivea product was a
contributing factor to the various ailments that Plaintiff suffered. Specifically, with reference to
the Gouverneur Hospital medical records, Defendant contends that Plaintiff’s injuries were not
caused by use of the Nivea product, but rather because: (1) he engaged in unprotected sex with
two different female partners on an intermittent basis; (2) Plaintiff suffers from hypospadias, which
renders him more susceptible to infection; and (3) he was diagnosed with possible prostatitis and
a urinary tract infection. (Def. Mem. of Law at 7-8.)
Thus, to overcome Defendant’s argument and survive summary judgment on the strict
products liability claim, Plaintiff had to come forward with competent evidence that excluded the
alternative causes proffered by the medical evidence as the actual etiology of Plaintiff’s injuries.
See Speller, 100 N.Y.2d at 42 (holding that, where the defendants argued that the fire in question
had been caused not by their refrigerator’s wiring, but rather by the plaintiff’s stove, “[i]n order to
withstand summary judgment, plaintiffs were required to come forward with competent evidence
excluding the stove as the origin of the fire”). Here, Plaintiff fails to present competent evidence
excluding the unprotected sex, hypospadias, and the possible prostatitis and urinary tract infection
as viable origins of his injuries. It is undisputed that on August 5, 2009, less than two years prior
to his use of the Nivea product, Plaintiff visited Gouverneur and complained of itching in his
genital area following unprotected sex with a female partner three weeks prior. (Gouverneur
Medical Records, Exhibit I, Dkt. Entry No. 80.) The treating physician determined that Plaintiff
may have been exposed to a venereal disease and identified chlamydia as a possible diagnosis.
(Id.)
It is similarly undisputed that, on June 9, 2011, approximately three months after first using
the Nivea product, Plaintiff returned to Gouverneur Hospital complaining of painful urination and

8 

informed the treating physician that, although he normally used protection during sexual
intercourse, he had recently engaged in unprotected sex. (Id.) Six days later, Plaintiff visited
Gouverneur Hospital again with complaints of continual burning to his genitals and the treating
physician surmised that Plaintiff may be suffering from a urinary tract infection and concluded
that chlamydia remained a distant possibility. (Id.) On January 22, 2013, Plaintiff returned to
Gouverneur once again complaining of painful urination. (Id.) During this visit, Plaintiff informed
the treating physician that he had unprotected sex with two different female partners within the
preceding three months. (Id.)
The medical records contain no reference to Plaintiff’s use of the Nivea product. Moreover,
Plaintiff has not adduced any affirmative factual, medical, or scientific evidence in support of his
claim that the Nivea product must have had a manufacturing defect. Accordingly, Defendant’s
motion for summary judgment with respect to Plaintiff’s strict products liability claim is granted
and Plaintiff’s cross-motion for summary judgment as to this claim is denied.
IV.

Negligence
“A cause of action in negligence will lie where it can be shown that a manufacturer was

responsible for a defect that caused injury, and that the manufacturer could have foreseen the
injury.” Kosmynka, 462 F.3d at 86 (emphasis included) (internal quotation marks and citations
omitted). In New York, the plaintiff bears the burden of establishing that a defect in the product
that is the subject of an action sounding in negligence was a substantial factor in causing the injury.
Sita v. Danek Medical, Inc., 43 F. Supp.2d 245, 252 (E.D.N.Y. 1999) (internal quotation marks
and citations omitted).
The basis for Plaintiff’s negligence claim is that Defendant’s “selection and mixture of
dangerous ingredients” in the Nivea product, its failure to test the Nivea product on male subjects

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with varying penile anatomies, and its failure to adequately place warning labels on the Nivea
product rendered it unfit for consumer use. (Am. Compl. at ¶ 3.) Plaintiff’s only basis for these
assertions is that he suffered burning several weeks after first using the Nivea product and intense
bleeding several weeks thereafter. (Pl. Dep. at 40:7-41:3, 42:5-7, 46:9-23, 48:13-18.) However,
Plaintiff has not proffered any evidence that Defendant was responsible for a specific defect in the
manufacture of the Nivea product that caused Plaintiff’s injuries.
In order to survive this motion for summary judgment, Plaintiff must carry the burden of
proof that the Nivea product proximately caused the burning and bleeding to his genitalia. See
Sita, 43 F. Supp.2d at 252. What caused Plaintiff’s penile injuries ultimately is a medical question;
however, Plaintiff does not submit any expert reports or scientific analysis showing that the Nivea
product was a contributing factor to his injuries. See Fane v. Zimmer, Inc., 927 F.2d 124, 131 (2d
Cir. 1991) (finding that the cause of plaintiff’s complex bone injury constituted a medical question
that extended “beyond the sphere of the ordinary juryman and required expert testimony”).
Furthermore, Plaintiff does not provide any evidence eliminating his episodes of
unprotected sex and the urinary tract infection as contributing factors to his injuries. “The
existence of a defect may be inferred by circumstantial evidence when the product does not
perform as intended and plaintiff’s proof excludes the possibility of other causes.” Gilks v. Olay
Co., Inc., 30 F. Supp.2d 438, 443 (S.D.N.Y. 1998). Defendant correctly notes that expert
testimony is required to establish a causal nexus between the Nivea product’s chemical
composition and Plaintiff’s injuries. (Def. Mem. of Law at 4.) Indeed, in case such as this, where
Plaintiff’s injuries have “multiple potential etiologies, expert testimony is necessary to establish
causation[.]” Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004). Here, Plaintiff fails
to proffer any expert testimony.

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Because Plaintiff’s proof does not exclude the possibility that his other medical ailments
contributed to and/or caused his penile injuries, his negligence claim is dismissed.
V.

Failure to Warn2
Plaintiff’s failure to warn claim is predicated on negligence. (Am. Compl. at ¶ 29.) “In

order to establish a prima facie case for failure to warn under New York law, a plaintiff must show
the following: (1) the manufacturer had a duty to warn; (2) the manufacturer breached the duty to
warn in a manner that rendered the product defective, i.e., reasonably certain to be dangerous;
(3) the defect was the proximate cause of the plaintiff’s injury; and (4) the plaintiff suffered loss
or damage.” Bee v. Novartis Pharmaceuticals Corp., 18 F. Supp.3d 268, 282-83 (E.D.N.Y. 2014).
In bringing a suit based upon a failure to warn under New York law, “[t]he plaintiff has the burden
of proving that a defect exists and that this defect is the proximate cause of the plaintiff’s injury.”
Ohuche v. Merck & Co., Inc., 903 F. Supp.2d 143, 149 (S.D.N.Y. 2012) (internal quotation marks
and citations omitted).
Summary judgment is deemed appropriate where a plaintiff has failed to introduce any
evidence that a manufacturer knew or should have known of the danger at issue. Bee, 18 F.
Supp.3d at 283. “When evaluating failure to warn liability, a court must conduct an intensely factspecific analysis including but not limited to such issues as feasibility and difficulty of issuing
warnings in the circumstances; obviousness of the risk from actual use of the product; knowledge
of the particular product user; and proximate cause.” Id. (citations and internal quotation marks
omitted).

2

Although Defendant contends that Plaintiff’s failure to warn claim must be disregarded as improperly raised for the
first time in his opposition papers, the Court liberally construes pro se Plaintiff’s negligence claim as encompassing a
cause of action for failure to warn. (See Defendant’s Memorandum of Law in Opposition to Plaintiff’s Cross-Motion
for Summary Judgment (“Def. Opp. to Cross-Motion”) at 2, Dkt. Entry No. 84; Am. Comp. at ¶ 3.) The negligence
portion of the amended complaint specifically includes the language, “Beiersdorf failed to provide adequate warnings
on their NIVEA FOR MEN product which would’ve informed the Plaintiff of dangers of which an ordinary person
might not be aware.” (Am. Compl. at ¶ 3.) (emphasis added.)

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Plaintiff contends that, because the Nivea product does not display a warning or precaution
about the lack of toxicological testing on males with hypospadiac genitalia, Defendant failed to
warn Plaintiff of the dangers inherent in the product’s use. (Plaintiff’s Memorandum of Law in
Opposition to Defendant’s Motion for Summary Judgment (“Pl. Opp.”) at 9-10, Dkt. Entry No.
81.) Defendant counters that Plaintiff has failed to demonstrate a causal link between the Nivea
product and his injuries. (Defendant’s Reply Memorandum of Law (“Def. Reply”) at 4, Dkt. Entry
No. 82.)
Even assuming, arguendo, that Plaintiff satisfied the first two elements of a failure to warn,
Plaintiff does not satisfy the third element because, as discussed above, he has not proffered any
evidence that the use of the Nivea product was the proximate cause of his injuries. Furthermore,
Plaintiff has not presented any evidence that Defendant knew, or should have known, that the
Nivea product would cause burning and bleeding to hypospadiac genitalia. It is well settled under
New York law that “a manufacturer cannot insure against all injuries that arise from the use of its
products.” Hollman v. Taser International Inc., 928 F. Supp.2d 657, 675 (E.D.N.Y. 2013); see
Micallef v. Miehle Co., Division of Miehle-Goss Dexter, Inc., 39 N.Y.2d 376, 386 (1976). Plaintiff
has not submitted any published studies, medical reports or other evidence that would have placed
Defendant on notice that the use of the Nivea product could contribute to injuries to males with a
hypospadiac penile anatomies. Similarly, even construing the facts in the light most favorable to
Plaintiff, his knowledge of his hypospadiac penile anatomy and its susceptibility to infection
constitutes knowledge of the danger inherent in using various gels and creams. “A defense to
liability for failure to warn exists when the injured party had actual knowledge of the danger.”
Henry v. Rehab Plus Inc., 404 F. Supp.2d 435, 442 (E.D.N.Y. 2005). Plaintiff’s knowledge of his
anatomical condition nullifies his failure to warn claim. Accordingly, Defendant’s motion for

12 

summary judgment on the failure to warn claim is granted and Plaintiff’s cross-motion for
summary judgment as to this claim is denied.
VI.

Negligent Misrepresentation
Under New York law, in order to state a claim for negligent misrepresentation, a plaintiff

must establish:
[T]hat the defendant owed him or her duty, as a result of a special relationship, to
provide him or her with correct information; (2) that the defendant made a false
representation that he or she should have known was incorrect; (3) that the
information supplied in the representation was known by the defendant to be
desired by the plaintiff for a serious purpose; (4) that the plaintiff intended to rely
and act upon such information; and (5) that the plaintiff reasonably relied on the
information to his or her detriment.
Fagan v. AmerisourceBergen Corp., 356 F. Supp.2d 198, 219 (E.D.N.Y. 2004). “In order to
establish a prima facie case of negligent misrepresentation, a plaintiff must show reliance upon a
false statement or material misrepresentation or omission made by the defendant to the plaintiff.”
Id. Moreover, the plaintiff must also show that the alleged misrepresentation caused the injury.
See Amusement Industry, Inc. v. Stern, 786 F. Supp.2d 758, 778 (S.D.N.Y. 2011) (recognizing the
causation requirement for a negligent misrepresentation claim). For the same reasons set forth in
the preceding sections, Plaintiff failed to establish the element of causation.

Accordingly,

Defendant’s motion for summary judgment with respect to the negligent misrepresentation claim
is granted and Plaintiff’s cross-motion for summary judgment is denied.
VII.

Spoliation
Since Defendant’s motion for summary judgment has been granted with respect to all of

Plaintiff’s claims, it is unnecessary for the Court to reach the issue of spoliation as it is moot.

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CONCLUSION
For the reasons set forth above, Defendant’s motion for summary judgment is granted in
its entirety and Plaintiff’s cross-motion for summary judgment is denied in its entirety.
Accordingly, this action is dismissed in its entirety, with prejudice. The Court certifies pursuant
to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and,
therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United
States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: Brooklyn, New York
September 30, 2016
/s/
DORA L. IRIZARRY
Chief Judge

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