Digangi v. Government Employers Insurance Company et al

Filing 13

ORDER granting 8 Motion to Dismiss for Failure to State a Claim; terminating 9 Motion to Dismiss for Failure to State a Claim - For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, defendant's motion to dismiss the complaint is granted in its entirety. Accordingly, this action is DISMISSED. The Clerk of the Court is directed to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 7/22/2014. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RONALD DIGANGI, individually and on behalf
:
of all others similarly situated,
:
:
Plaintiff,
:
:
-against:
:
GOVERNMENT EMPLOYERS INSURANCE
:
COMPANY, GEICO CASUALTY COMPANY,
:
GEICO INDEMNITY COMPANY, and GEICO
:
GENERAL INSURANCE COMPANY,
:
:
Defendants.
:
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DORA L. IRIZARRY, U.S. District Judge:

MEMORANDUM AND ORDER
13-CV-5627 (DLI)(RLM)

Plaintiff Ronald DiGangi (“DiGangi” or “Plaintiff”), brings this putative class action
against Government Employers Insurance Company, Geico Casualty Company, Geico Indemnity
Company, and Geico General Insurance Company (collectively, “Defendants” or “GEICO”).
The complaint alleges that GEICO breached Plaintiff’s automobile insurance policy and violated
Section 349 of the New York General Business Law by specifying allegedly inferior auto parts
in its repair estimates for damaged vehicles. Defendants move to dismiss all of the claims
asserted against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Rule
12(b)(6)”). (Notice of Motion, Doc. Entry No. 8.) Plaintiff opposes. (Pl.’s Mem. of Law in
Opp. to Defs.’ Mot. to Dismiss (“Pl.’s Mem.”), Doc. Entry No. 11.) For the reasons set forth
below, Defendants’ motion is granted due to Plaintiff’s failure to state a claim upon which relief
may be granted.
BACKGROUND
The following facts are taken from the complaint and are assumed true solely for
purposes of this motion.

On March 8, 2012, Plaintiff’s Nissan Maxima was damaged in a collision. (Compl. ¶ 43,
Doc. Entry No. 1.) At the time of the collision, Plaintiff was insured under a standard GEICO
private passenger automobile insurance policy (the “Policy”). (Id. ¶¶ 1, 5.) Plaintiff took his car
to a body shop in Oceanside, New York, and he was issued a repair estimate for his car. (Id. ¶¶
43-44.)

Based on the repair estimate, GEICO issued Plaintiff a check in the amount of

$6,295.02. (Id. ¶¶ 1, 46.) Plaintiff elected to have his car repaired with more expensive parts
than those used to prepare the estimate. (Id. ¶ 47.) Therefore, the cost of repairing his car
exceeded the amount of the check Plaintiff received from GEICO. (Id.)
Plaintiff claims that the repair estimate was too low because it was based on the cost of
“aftermarket structural crash parts.” (Id. ¶¶ 1, 44, 46.) While original equipment manufacturer
(“OEM”) parts are manufactured by the company that originally built the vehicle, “aftermarket,”
or “non-OEM,” parts are manufactured by another company. (Id. ¶ 1, n.1.) “Structural crash
parts” are vehicle components including bumpers, fenders, radiator supports, and bumper
reinforcements. (Id. ¶¶ 1, 10.) According to Plaintiff, GEICO steers customers to body shops
that base repair estimates on aftermarket parts. (Id. ¶¶ 14-16.) By using such estimates to pay
claims, GEICO systematically fails to pay claimants “in amounts that . . . compensate them for
the true cost to repair and restore their vehicles to ‘pre-loss condition.’” (Id. ¶¶ 3, 13, 36.)
Moreover, Plaintiff contends that GEICO “conceal[s] its estimating practices” such that
claimants “have no way of knowing that they are in fact receiving aftermarket structural crash
parts.” (Id. ¶¶ 38-40, 45.)
Plaintiff contends that aftermarket structural crash parts are inferior to OEM structural
crash parts “in terms of structural integrity, corrosion resistance, finish and appearance, fit,
material composition, durability an[d] dent resistance. . . .” (Id. ¶¶ 2, 17.) Specifically, Plaintiff

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contends that aftermarket parts are inferior because, inter alia, aftermarket parts are “reverse
engineered” from OEM parts “without the benefit of the vehicle manufacturer’s specifications.”
(Id. ¶ 18). Attached to the Complaint are several documents purporting to show the general
inferiority of aftermarket car parts. (Id. ¶¶ 22, 25-33; Compl., Exs. A-F.)
On October 11, 2013, Plaintiff filed the instant action, seeking, inter alia, declaratory
judgment, injunctive relief, and damages. Plaintiff asserts causes of action on behalf of himself
and the putative class for: 1) breach of contract; 2) unfair and deceptive trade practices under the
New York General Business Law; and 3) declaratory and injunctive relief. Defendants move to
dismiss the complaint pursuant to Rule 12(b)(6), claiming that Plaintiff has failed to allege facts
that plausibly support a claim against GEICO. (Mem. of Law on Behalf of Defs. in Supp. of
their Mot. to Dismiss (“Defs.’ Mem.”), Doc. Entry No. 9.) Plaintiff opposes. (Pl.’s Mem.)
For the reasons set forth below, Defendants’ motion is granted on the ground that the
complaint fails to state a claim upon which relief may be granted.
DISCUSSION
I.

Legal Standard
Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings must contain a “short

and plain statement of the claim showing that the pleader is entitled to relief.” Pleadings are to
give the defendant “fair notice of what the claim is and the grounds upon which it rests.” Dura
Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957), overruled in part on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
“The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
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do.’” Id. (quoting Twombly, 550 U.S. at 555).
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move, in
lieu of an answer, for dismissal of a complaint for “failure to state a claim upon which relief can
be granted.” To resolve such a motion, courts “must accept as true all [factual] allegations
contained in a complaint,” but need not accept “legal conclusions.” Iqbal, 556 U.S. at 678. For
this reason, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” to insulate a claim against dismissal. Id. “[A] complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Notably, courts may only consider the
complaint itself, documents that are attached to or referenced in the complaint, documents that
the plaintiff relied on in bringing suit and that are either in the plaintiff’s possession or that the
plaintiff knew of when bringing suit, and matters of which judicial notice may be taken. See
Roth v. Jennings, 489 F. 3d 499, 509 (2d Cir. 2007). The fact that the Plaintiff has asserted a
putative class action does not affect the Court’s analysis of the validity of the named Plaintiff’s
claims. Patchen v. Gov’t Employers Ins. Co., 759 F. Supp. 2d 241, 244 (E.D.N.Y. 2011).
II.

Analysis
A.

Breach of Contract

Plaintiff asserts a cause of action for breach of contract. The elements of a breach of
contract claim in New York are: (1) the existence of a contract, (2) performance by the party
seeking recovery, (3) non-performance by the other party, and (4) damages attributable to the
breach. Biremis, Corp. v. Merrill Lynch, Pierce, Fenner & Smith Inc., 2012 WL 3929951, at *3
(E.D.N.Y. Sept. 10, 2012) (citing RCN Telecom Servs., Inc. v. 202 Ctr. St. Realty LLC., 156 F.
App’x 349, 350 (2d Cir. 2005)). “A breach of contract claim will withstand a motion to dismiss
only if plaintiff alleges the essential terms of the parties’ purported contract in nonconclusory
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language, including the specific provisions of the contract upon which liability is predicated.”
Kapsis v. Am. Home Mortgage Servicing Inc., 923 F. Supp. 2d 430, 450 (E.D.N.Y. 2013).
The parties do not dispute the existence of a contract. However, Defendants claim that
Plaintiff has failed to allege the additional elements of a cause of action for breach of contract.
Specifically, Defendants contend that Plaintiff has failed to plausibly state a claim for breach of
contract because: 1) Plaintiff failed to comply with the Policy’s requirements prior to bringing a
lawsuit (Defs.’s Mem. at 7-9); 2) the Policy allows GEICO to use aftermarket crash parts in
adjusting claims (Defs.’ Mem. at 3-7); and 3) Plaintiff has failed to allege “actual or measurable
damages to support a claim.” (Defs.’ Mem. at 15-16). For the reasons stated herein, the Court
finds that the complaint fails to adequately plead that GEICO did not perform its obligations
under the Policy.
i.

Plaintiff’s obligations prior to filing suit

Defendants argue that Plaintiff has not performed his obligations under the Policy
because he failed to: 1) notify GEICO that he disputed the claim adjustment prior to filing suit;
and 2) participate in a loss appraisal prior to filing suit. (Defs.’ Mem. at 7-9.) The Court
declines to address these arguments because they would require the Court to make factual
determinations, and, therefore, are inappropriate in the context of a motion to dismiss pursuant to
Rule 12(b)(6).
ii.

GEICO’s use of non-OEM structural crash parts

Defendants contend that Plaintiff has failed to allege adequately that GEICO did not
perform its obligations under the Policy. The Policy provides, in relevant part, that GEICO “will
pay for collision loss to the owned . . . auto for the amount of each loss less the applicable

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deductible.” (Policy 1 at 10, Doc. Entry No. 8-4.) The limit of GEICO’s liability for loss “will
not exceed the cost to repair or replace the property, or any of its parts, with other of like kind
and quality . . . .”

(Id. at 11.)

The New York State Insurance Law (“Insurance Law”)

supplements the Policy, providing, in relevant part: “(5) If the insurer’s repair estimate is based
upon the use of any non-OEM crash part: . . . (iii) the crash part shall equal or exceed the
comparable OEM crash part in terms of fit, form, finish, quality and performance.” N.Y. Comp.
Codes R. & Regs. tit. 11, § 216.7(b)(5).
The complaint does not assert plausibly that GEICO based the repair estimate for
Plaintiff’s vehicle on non-OEM structural crash parts that: 1) were not of “like kind and
quality”; or 2) did not “equal or exceed the comparable OEM crash parts in terms of fit, form,
finish, quality, and performance.” Indeed, the complaint suffers from the same deficiencies
identified by the court in Patchen v. Gov’t Employers Ins. Co., a case with facts almost identical
to this one. 759 F. Supp. 2d 241. Here, as in Patchen,
Plaintiff[] allege[s] no facts about the condition of the non-OEM [structural] parts
listed in [his] estimate, or about the manufacturers of those particular non-OEM
parts. . . . Rather, the Plaintiff[] focus[es] solely on alleging facts that support the
conclusion that all non-OEM [structural] parts are inferior, regardless of the part
or the manufacturer.
Patchen, 759 F. Supp. 2d at 245-46. This Court is persuaded by the Patchen court’s finding that
the type of allegations present in the complaint, including the documents attached to the
complaint, fail to allege facts showing that it is plausible that all non-OEM structural crash parts
are inferior to OEM parts.

Id. at 247.

Moreover, it is clear that the parties’ agreement

“contemplated the specification of non-OEM crash parts for repairs,” and, therefore,
“specification of non-OEM parts, by itself, cannot constitute a breach of the [contract].” Id. at

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Since the Policy is referenced in the complaint and relied upon by the Plaintiff, it may be considered by the Court
in deciding this motion. See Roth, 489 F. 3d at 509.

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247 (quoting Avery. State Farm Mut. Auto. Ins. Co., 216 Ill. 2d 100, 296 (Ill. 2005)); see id. at
248 (finding that the Insurance Law “explicitly permit[s] and regulate[s] the specification of nonOEM crash parts in repair estimates”). (See also Policy at 11 (providing that GEICO may
calculate its liability based on the cost of parts of “like kind and quality”)).
Plaintiff argues that his claims are much narrower, and, therefore, more plausible than
those presented in Patchen. (Pl.’s Mem. at 1-2.) Specifically, the plaintiffs in Patchen claimed
that all aftermarket crash parts were inferior to OEM crash parts, while DiGangi claims that all
aftermarket structural crash parts are inferior to OEM structural crash parts. However, this
distinction does not alter the Court’s analysis or cure the complaint’s deficiencies. Neither the
complaint nor the documents attached to the complaint, which purport to show that aftermarket
parts are often inferior to OEM parts, address adequately the specific non-OEM structural parts
specified in Plaintiff’s repair estimate.

Moreover, the Insurance Law does not distinguish

between structural and other crash parts. See N.Y. Comp. Codes R. & Regs. tit. 11, § 216.7(a)(6)
(defining a “crash part”). Nor has Plaintiff provided any rationale for distinguishing between
structural crash parts and crash parts in general. In short, Plaintiff has failed to plausibly allege
either that: 1) the non-OEM structural crash parts specified in his repair estimate were inferior to
the comparable OEM parts, or 2) that aftermarket structural crash parts are universally inferior to
OEM structural crash parts. Thus, Plaintiff’s allegation that GEICO breached the Policy by
specifying non-OEM structural crash parts in his repair estimate is insufficient to state a claim
upon which relief may be granted.
Accordingly, Plaintiff has failed to plausibly allege non-performance under the Policy by
GEICO, and, therefore, his claim for breach of contract must be dismissed.

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iii.

Damages

Defendants contend that Plaintiff has “failed to allege any actual or measurable damages
to support a claim.” (Defs.’ Mem. at 15.) According to GEICO, “mere specification of nonOEM parts in [Plaintiff’s] repair estimate and GEICO’s subsequent issuance of a check, which
included payment for same” is insufficient to survive a motion pursuant to Rule 12(b)(6). (Id. at
16 (citing Avery, 216 Ill. 2d at 148)). While the Court agrees that “mere specification” of nonOEM parts is likely insufficient to state a claim for damages, the Plaintiff’s claim for damages in
the amount of the “difference between the cost of a[n] OEM structural crash part and the cost of
the inferior aftermarket structural crash parts listed on GEICO’s repair estimate” (Compl. ¶ 66),
constitutes a claim for damages that is not merely “speculative, possible, and imaginary.”
Tractebel Energy Mktg., Inc. v. AEP Power Mktg., Inc., 487 F.3d 89, 110 (2d Cir. 2007).
Accordingly, Plaintiff has properly asserted a claim for damages. Nonetheless, having
found that Plaintiff has failed to plausibly allege non-performance by GEICO, Plaintiff’s first
cause of action is dismissed for failure to state a claim upon which relief may be granted.
B.

New York General Business Law

Next, the complaint asserts a cause of action for violation of the New York General
Business Law § 349, et seq. (“Section 349”).

“Section 349 prohibits ‘[d]eceptive acts or

practices in the conduct of any business, trade or commerce or in the furnishing of any service in
this state.’” Kaplan, Inc. v. Yun, 2014 WL 1689040, at *9 (S.D.N.Y. Apr. 30, 2014) (quoting
N.Y. Gen. Bus. Law § 349(a)). To state a claim under Section 349, “a plaintiff must allege that a
defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and
that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Id.
(quoting Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012)). The first element of

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a Section 349 claim “is of greatest import.” James v. Penguin Grp. (USA) Inc., 2014 WL
1407697, at *9 (S.D.N.Y. Apr. 11, 2014) (citing City of New York v. Smokes–Spirits.com, Inc.,
541 F.3d 425, 455 (2d Cir. 2008), rev’d and remanded on other grounds by Hemi Grp., LLC, v.
City of New York, 559 U.S. 1 (2010)).
Defendants contend that Plaintiff has failed to allege a claim under Section 349 because:
1) this matter involves a private contract rather than consumer oriented conduct; 2) Plaintiff has
not alleged with particularity any deceptive or misleading act by GEICO; and 3) Plaintiff has not
alleged any injury caused by the deceptive act. (Defs.’ Mem. at 18-20.) For the reasons stated
herein, Plaintiff’s claim for violation of Section 349 is dismissed for failure to state a claim upon
which relief may be granted.
i.

Consumer-Oriented Conduct

Defendants contend that the complaint alleges “nothing more than [a] private contractual
dispute[] that lack[s] the consumer impact necessary to state a claim under section 349.” (Defs.’
Mem. at 18.) The scope of consumer oriented conduct is defined broadly. James, 2014 WL
1407697, at *9. To satisfy this element, a plaintiff must “demonstrate that the acts or practices
have a broader impact on consumers at large. Private contract disputes, unique to the parties . . .
would not fall within the ambit of the statute.” Id. (quoting Oswego Laborers’ Local 214
Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25 (N.Y. 1995)).
Plaintiff has adequately pleaded that Defendants’ conduct is consumer oriented. The
Policy at issue here is not “a complex, personalized insurance contract negotiated by
sophisticated parties.” James, 2014 WL 1407697, at *9 (citing New York Univ. v. Cont’l Ins.
Co., 87 N.Y.2d 308, 321 (1995)). Instead, Plaintiff’s claims regard a standard agreement used by
other consumers.

There is no indication that the Policy was negotiated by the parties or

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significantly altered from a boilerplate form. Thus, Plaintiff’s transaction with GEICO plausibly
is indicative of a larger practice impacting consumers at large. Such transactions, in which a
consumer receives standard forms and the parties occupy disparate bargaining positions have
been held to be consumer oriented.

See Oswego, 85 N.Y.2d at 26.

The cases cited by

Defendants are distinguishable. For example, in PB Americas Inc. v. Cont’l Cas. Co., the court
found that the plaintiff had failed to allege that the conduct at issue was consumer oriented
because the transaction concerned “complex professional liability coverage”; the policy was “not
a standard form used by other consumers,” but a “carefully negotiated contract”; and the plaintiff
was sophisticated party rather than an individual consumer susceptible to deceptive marketing
practices”. 690 F. Supp. 2d 242, 252 (S.D.N.Y. 2010).
Accordingly, Plaintiff has alleged plausibly that Defendants have engaged in consumer
oriented conduct. The Court proceeds to consider whether Plaintiff has alleged that GEICO
engaged in materially misleading conduct under Section 349.
ii.

Misleading Conduct

Defendants contend that Plaintiff has failed to allege that GEICO engaged in practices
that were materially deceptive. “Deceptive practices are acts which are dishonest or misleading
in a material respect. Deceptive acts are defined objectively as acts likely to mislead a reasonable
consumer acting reasonably under the circumstances.” Spagnola v. Chubb Corp., 574 F.3d 64,
74 (2d Cir. 2009). “[A] deceptive practice need not reach the level of common-law fraud to be
actionable under section 349, and reliance is not an element of a Section 349 claim.” M.V.B.
Collision, Inc. v. Allstate Ins. Co., 2007 WL 2288046, at *5 (E.D.N.Y. Aug. 8, 2007) (citing
Stutman v. Chem. Bank, 95 N.Y.2d 24, 29 (2000)) (internal quotations omitted).

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Plaintiff alleges that GEICO mislead consumers by: 1) failing to inform consumers that
its method of specifying aftermarket structural crash parts in estimates would lead to lower
payments; 2) steering claimants to body shops that agreed to use GEICO’s estimating methods;
3) specifying aftermarket structural crash parts that did not “equal or exceed” comparable OEM
parts, in violation of the Insurance Law; 4) misrepresenting structural aftermarket crash parts as
being “Quality Replacement Parts”; 5) failing to disclose the actual supplier or manufacturer of
the specified aftermarket parts, and, instead, identifying entities that “merely transshipped the
parts”; and 6) failing to inform claimants that the use of such parts would void manufacturer’s
warranties. (Compl. ¶¶ 2,12, 14-16, 34-35, 38-40.)
Plaintiff’s allegation that GEICO failed to disclose material information about
aftermarket parts used in adjusting claims is belied by the repair estimate attached to the
complaint. The estimate clearly states, inter alia, that
The preparation of this estimate may have been based on the use of crash parts
supplied by a source other than the manufacturer of your motor vehicle.
(Compl., Ex. G at 6, 9);
There are warranties applicable to these replacement parts[, which] are provided
by the manufacturer and/or distributor of the parts rather than by the original
manufacturer of your vehicle;
(Id.); and
Non-Original Equipment Manufacturer aftermarket parts are described as AM,
Qual Repl Parts, or Comp Repl Parts which stands for Competitive Replacement
Parts.
(Id. at 6, 10.) Nor has Plaintiff plausibly alleged that aftermarket parts are inferior to OEM parts.
(See Part II. A. i). Moreover, although steering consumers to captive body shops could be
considered a materially deceptive practice, See M.V.B. Collision, Inc. v. Allstate Ins. Co., 2007
WL 2288046, at *6 (finding that the plaintiff’s allegations of steering, along with other
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misrepresentations, adequately pled deceptive practices by defendant insurance company); see
also Patchen, 759 F. Supp. 2d at 249 (finding that the plaintiffs’ allegation that GEICO “actively
corralled claimants into ‘captive’ repair shops that would recommend substandard non-OEM
replacement parts, while failing to inform claimants that non-OEM parts were inferior . . . is at
least arguably . . . materially misleading”), Plaintiff has failed to allege that he was “steered” in
any way to the body shop that prepared his repair estimate.
Accordingly, Plaintiff has failed to plausibly allege that Defendants engaged in materially
deceptive practices.
iii.

Injury

Defendants contend that Plaintiff has not alleged any injury caused by GEICO’s allegedly
deceptive acts. “Although a monetary loss is a sufficient injury to satisfy the requirement under
[Section] 349, that loss must be independent of the loss caused by the alleged breach of
contract.” Spagnola, 574 F.3d at 74. Here, Plaintiff contends that he was injured by GEICO’s
failure to compensate him “in an amount that would enable him to restore his vehicles to pre-loss
condition.” (Pl.’s Mem. at 23). Specifically, Plaintiff alleged that he suffered damages in the
amount of the difference between the cost of the non-OEM structural crash parts specified in his
repair estimate and the cost of the comparable OEM structural crash parts. (Compl. ¶ 66). This
injury is not independent of the loss caused by the alleged breach of contract; rather, it arises out
of “the exact causes and effects complained of in the . . . breach claim.” See Fleisher v. Phoenix
Life Ins. Co., 858 F. Supp. 2d 290, 305-06 (S.D.N.Y. 2012) (holding that the plaintiff failed to
state a claim for damages under Section 349 because the alleged damages “stem[med] from the
alleged breach of contract”). Thus, the Court finds that Plaintiff has failed to state a claim for
damages under Section 349.

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In sum, the Court finds that Plaintiff has failed to plausibly allege that: 1) Defendants
engaged in materially deceptive conduct, and 2) Plaintiff suffered injury as a result of the
allegedly deceptive acts. Accordingly, Plaintiff’s second cause of action for violation of Section
349 is dismissed.
C.

Declaratory and Injunctive Relief

Plaintiff seeks “a judgment declaring that GEICO must restore Plaintiff’s and putative
class members’ damaged vehicles to pre-loss condition using OEM structural crash parts or parts
of like kind and quality of OEM structural crash parts.” (Compl. ¶ 80.) Plaintiff also seeks
“injunctive relief enjoining GEICO from using aftermarket structural crash parts unless the
aftermarket structural crash parts are of like kind and quality as to OEM structural crash parts
because they equal or exceed the comparable OEM structural crash parts in terms of structural
integrity, corrosion, resistance, finish and appearance, fit, material composition, durability, and
dent resistance . . . .” (Id. ¶ 81.) Since under New York law GEICO is obligated to specify crash
parts that “equal or exceed the comparable OEM crash part in terms of fit, form, finish, quality
and performance,” N.Y. Comp. Codes R. & Regs. tit. 11, § 216.7(b)(5), Plaintiff “essentially
asks the Court to repeat this statutory directive.” Patchen, 759 F. Supp. 2d at 250.
The Court declines to issue a declaratory judgment, since doing so would not finalize the
controversy between the parties, clarify the legal issues involved, or serve any other useful
purpose. See New York Times Co. v. Gonzales, 459 F.3d 160, 167 (2d Cir. 2006). Additionally,
the Court dismisses Plaintiff’s cause of action for injunctive relief, since he failed to state a claim
for either breach of contract or a violation of Section 349. Accordingly, Plaintiff’s third cause of
action for declaratory judgment and injunctive relief is dismissed.

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CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss is granted in its entirety.
SO ORDERED.
Dated: Brooklyn, New York
July 22, 2014
_______________/s/_____________
DORA L. IRIZARRY
United States District Judge

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