Kail et al v. Wolf Appliance, Inc.
MEMORANDUM & ORDER granting in part and denying in part 24 Motion for Summary Judgment; Defendant's motion for summary judgment (Docket Entry 24) is GRANTED IN PART and DENIED IN PART. As for the 2014 replacement range, four claims will pro ceed to trial: (1) breach of the written warranty; (2) breach of the implied warranty of merchantability; (3) violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.; and (4) negligent misrepresentation. Before Plaintiffs file a mo tion for class certification, the Court directs the parties to confer and submit a proposed briefing schedule within twenty (20) days of the date of this Memorandum and Order. So Ordered by Judge Joanna Seybert on 8/21/2017. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
IVAN and MELANIE KAIL, individually
and on behalf of all others
MEMORANDUM & ORDER
-againstWOLF APPLIANCE, INC.,
Mark S. Reich, Esq.
Vincent Michael Serra, Esq.
Robbins Geller Rudman & Dowd, LLP
58 South Service Road, Suite 200
Melville, New York 11747
Douglas Scott Heffer, Esq.
Yonaton Aronoff, Esq.
Anne Berkowitz Sekel, Esq.
Foley & Lardner LLP
90 Park Avenue
New York, New York 10016
Gordon Davenport, Esq.
Foley & Lardner LLP
150 East Gilman Street
Madison, Wisconsin 53703
Max B. Chester, Esq.
Foley & Lardner LLP
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
SEYBERT, District Judge:
Defendant Wolf Appliances, Inc. manufactures high-end
cooking appliances, including dual fuel ranges, which combine
gas cooktop burners with electric ovens underneath.
Ivan and Melanie Kail have owned a Wolf range since 2006.
the last eight years, however, the Kails received at least ten
replacement parts and units to address cosmetic issues with the
interior of the oven: Whenever the couple used the self-cleaning
function, the oven liner chipped and cracked.
Under the two-
year limited warranty, which came with the original unit and
labor for any part of the product.
But Wolf alleges, and the
Kails dispute, that in 2014, the parties agreed to modify the
warranty to exclude any cosmetic-related damages.
declined, and so the Kails filed this proposed class action.
For the following reasons, Wolf’s motion is GRANTED
IN PART and DENIED IN PART.
amplifying the facts in the analysis to come.1
As with all
Citations are as follows: the Kails’ 56.1 Counterstatement
(Pls.’ 56.1 Counterstmt., Docket Entry 24-3); Ivan Kail’s
Deposition Testimony (Ivan Tr., Docket Entry 24-4); a March 2014
letter detailing the warranty modification (Mar. 2014 Ltr.,
Docket Entry 24-5); Melanie Kail’s Deposition Testimony
(Melanie’s Tr., Docket Entry 24-9); Stephanie Stetson’s
Declaration (Stetson Decl., Docket Entry 24-12); Def.’s customer
service database (Docket Entry 24-13); Wolf’s standard warranty
summary judgment motions, the Court construes the facts in the
inferences and ambiguities are drawn in their favor.
v. City of N.Y., 422 F.3d 47, 50 n.1 (2d Cir. 2005).
In the fall of 2006, the Kails acquired their first
selecting the specific model.2
interior of the oven.
(Id. ¶¶ 3, 5.)
(Ivan Tr. 50:3–9; Melanie Tr. 22:7–11;
aesthetic, Wolf says, the porcelain will “enhance the oven’s
August 16, 2017).)
Unfortunately, the porcelain cracked and
for its 2006 products (Ltd. Warranty, Docket Entry 24-14); a
Wolf press release dated November 13, 2012 (Nov. 2012 Press
Release, Docket Entry 28-5); excerpts of Stetson’s Deposition
testimony (Stetson Tr., Docket Entry 28-6); a letter between
Ivan Kail and a Wolf representative dated August 18, 2009 (Aug.
2009 Ltr., Docket Entry 28-7); Defendant’s Brief (Def.’s Br.,
Docket Entry 24-1); Plaintiffs’ Opposition Brief (Pls.’ Br.,
Docket Entry 27); and Defendant’s Reply Brief (Def.’s Reply Br.,
Docket Entry 31).
To avoid confusion, the Court occasionally refers to the
plaintiffs as Ivan and Melanie. No disrespect is intended.
(Melanie Tr. 137:14–24.)
Between 2006 and 2014, the Kails received at least
three replacements units: (1) a paid upgrade in September 2009;
(2) a free replacement in March 2012, and (3) a free replacement
in the spring of 2014.4
(Stetson Decl. ¶ 4.)
The Kails also
received replacement liners in January 2007, May 2007, September
2008, July 2010, August 2010, and December 2012.
pattern emerged, Wolf offered a cosmetic allowance of $500 or a
buyback of the unit, but with the exception of the 2009 upgrade,
the Kails “always opted for exchanging or replacing the units.”
parts) came with a new warranty.
full two-year warranty, Wolf “covers all parts and labor to
repair or replace any part of the product that proves to be
The Kails describe the issue as “peeling,” “crack[s],”
“complete spidering everywhere,” and “complete enamel coming
off.” (Pls.’ 56.1 Counterstmt. ¶ 26.)
The upgraded model and its replacements contained the same blue
The cited warranty accompanied Wolf’s products in 2006, but
“later versions of the written warranty contained the same twoyear ‘repair or replace’ language.” (Stetson Decl. ¶ 7.)
defective in materials or workmanship” from the date the unit is
First, in late September 2009, the Kails paid $500
to upgrade their range from a 36-inch model to a 48-inch model.
(Stetson Decl. ¶ 6.)
Ivan has “a recollection of some sort of a
dialogue” with an unidentified Wolf employee over the decision
paraphrased the conversation: “[T]hey don’t believe that this
issue we were having in the small unit would happen in a larger
representative sent a letter memorializing this conversation,
(Aug. 2009 Ltr. at 1.)
their most recent replacement.
(Pls.’ 56.1 Counterstmt. ¶ 43.)
advised the Kails that if they accepted the new replacement, its
warranty would not cover any future porcelain damage.
March 14, 2014.
Here is what that letter says, in pertinent
This letter is to confirm our conversation
regarding a No Charge Replacement of your
unit . . . .
We appreciate your patience
while we work to provide you with a brand
new unit as quickly as possible.
note that no further product exchanges will
occur on this replacement unit due to
We will also not repair
any porcelain crazing or chipping on the new
(Mar. 2014 Ltr. (emphasis in original).)
In his deposition
testimony, Ivan recalled the conversation and acknowledged that
he received the letter.
(Ivan Tr. 166:9–167:2.)
Service Manager, has explained that warranty modifications are
apparently a rare occurrence at Wolf.
It is unclear whether
your standard customer service representative has the authority
to modify warranties on behalf of Wolf.
(Stetson Tr. 138:24–
At the very least, the Director of Customer Service,
indication that he was.
in 2015, the Kails complained to Wolf, which declined to provide
another replacement under the terms of the allegedly modified
(Stetson Decl. ¶ 9.)
The Kails continue to use their
range but are unhappy with the cosmetic issues.
Counterstmt. ¶ 49.)
behalf of themselves and other nationwide Wolf customers.6
it, they assert claims against Wolf for: (1) breach of express
and implied warranties under state law and the Magnuson-Moss
Warranty Act (“MMWA” or the “Act”), 15 U.S.C. § 2301 et seq.;
(2) negligent misrepresentation; and (3) deceptive practices and
false advertising under New York General Business Law, §§ 349,
(Compl., Docket Entry 1, ¶¶ 16-17.)
On October 17, 2016, Wolf moved for summary judgment.
(Docket Entry 24.)
and May 17, 2017.
Discovery was stayed between October 7, 2016
(Minute Entry 23.)
Standard of Review
Summary judgment is appropriate only if “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.”
R. CIV. P. 56(a).
“Material facts are those which ‘might affect
the outcome of the suit under the governing law,’ and a dispute
is ‘genuine’ if ‘the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’”
The Court need not reach the class-certification issue before
addressing the merits of this motion. See Boykin v. 1 Prospect
Park ALF, LLC, 993 F. Supp. 2d 264, 283 (E.D.N.Y. 2014) (citing
Schweizer v. Trans Union Corp., 136 F.3d 233, 239 (2d
Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510, 91 L. Ed. 2d 202 (1986)).
As a general matter, the range at issue is the Kails’
(See Pls.’ Br. at 24–25.)
With that in mind,
the Court will begin by analyzing the warranty-based claims: (1)
violation of the MMWA.
A. The Written Warranty
A “claim for breach of express warranty requires proof
plaintiff had relied on that warranty.”
Supp. 2d 571, 578 (E.D.N.Y. 2012).
Reed v. Pfizer, 839 F.
“Under New York law, a
seller may extend or exclude express and/or implied warranties.”
Jackson v. Eddy’s LI RV Ctr., Inc., 845 F. Supp. 2d 523, 530
Wolf’s standard warranty “covers all parts and
labor to repair or replace any part of the product that proves
to be defective in materials or workmanship.”
But Ivan, Wolf says, accepted a modified warranty that
excluded any porcelain issues.
(Def.’s Reply Br. at 8.)
To begin, the Kails frame some of their arguments in
terms of preexisting legal obligations and improper contractual
(Pls.’ Br. at 11–13.)
Those arguments confuse
including the 2014 unit, came with a new warranty.
words, a new warranty means a new contract.7
Shifting back to Wolf’s argument, it is true that Ivan
memorializing their conversation.
(Ivan Tr. 61:3–62:13, 163:19–
But whether Heitmannn had the authority to
If a modification needs to be made to
the warranty, do you know who makes
that or who determines to make that?
Steve Zimmerschied would be part of
I don’t know who would
make the final determination.
[Matt Heitmann’s] the one that made the
decision to send the letter?
Based on the information that I have
In any event, the Statute of Frauds, N.Y. U.C.C. § 2-201(1),
would not apply because the 2014 replacement range does not
arise from a “sale of goods for the price of $500 or more.”
(See Pls.’ Br. at 18 n.19.)
decision. Whether he contacted another
individual, I don’t know.
Would a letter like this typically have
to be cleared by somebody above Mr.
Heitmann’s level at Wolf?
This isn’t a typical letter, so I don’t
know whether -- I don’t think we would
have a procedure of what would have to
be covered, I mean whether he would
have to talk to somebody else.
objections omitted).) This evidence would entitle a reasonable
deposed to provide any clarification.
On top of this, Wolf
required a countersignature when the Kails upgraded their range
Drawing all inferences in the Kails’ favor, as the
Court must, it is unclear whether Wolf routinely requires a
countersignature in the course of its business.
Without Zimmerschied’s testimony or further explanation
on Wolf’s modification procedures, the Court must deny summary
judgment on the breach of the written warranty claim.
Wolf maintains an internal database for customer service calls,
including the one between Ivan and Heitmann. These sparse notes
do not indicate whether Zimmerschied approved the warranty
modification. (See Def.s’ Customer Service Database at 2.)
B. Express Warranties Created by Affirmations or Promises
include “[a]ny affirmation of fact or promise made by the seller
to the buyer which relates to the goods and becomes part of the
basis of the bargain.”
N.Y. U.C.C. § 2-313(1)(a).
in the record indicates that Wolf made any new statements in
connection with the 2014 replacement range.
(See Melanie Tr.
155:7–11 (“Q: And again, for all of these replacements, there
were no new advertisements or anything like that that you looked
at, brochures? A: No, sir.”) (internal form objection omitted).)
Any affirmations or statements relate to the initial purchase in
2006 or the paid upgrade in 2009.
(See Stetson Decl. ¶¶ 3-4.)
Wolf argues that claims based on these units are barred by the
statute of limitations.
(Def.’s Reply Br. at 6.)
limitations is four years.
Statler v. Dell, Inc., 775 F. Supp.
2d 474, 481 (E.D.N.Y. 2011).
The clock “begins to run ‘on
When, as here, the delivery method has not been
altered, a “tender of delivery . . . occurs when the seller
physically delivers the goods.”
St. Anne-Nackawic Pulp Co. Ltd.
claims based on the 2006 and 2009 units untimely.
slew of replacement parts and units, “the law is clear that
attempts to repair a warrantied product, within the warranty
Statler, 775 F. Supp. 2d at 482.
No other tolling exceptions
The three cases cited by the Kails do not change this
(See Pls.’ Br. at 13 n.12, 25.)
First, in Coakley &
Williams, Inc. v. Shatterproof Glass Corp., 706 F.2d 456 (4th
Cir. 1983), the Fourth Circuit applied Maryland law to conclude,
contrary to New York law, that replacement goods “carried their
own limitations period.”
Id. at 463.
Next, in Alstom Power,
Inc. v. Schwing Am., Inc., No. 04-CV-1311, 2006 WL 2642412 (D.
Conn. Sept. 14, 2006), the replacement parts were not defective,
tender of the original parts.”
Id. at *5 n.9.
Camillo v. Olympia & York Properties Co., 157 A.D.2d 34, 554
N.Y.S.2d 532 (1st Dep’t 1990), the court avoided the issue at
hand because the breach-of-warranty claims would have been time-
Although the discovery rule is generally inapplicable, there is
a future-performance exception for express warranties. “[W]here
a warranty explicitly extends to future performance of the goods
. . . the cause of action accrues when the breach is or should
have been discovered.” N.Y. U.C.C. § 2-725(2). But the record
lacks any mention of such guarantees.
barred even if the limitations period began with the replacement
Id. at 40–45, 554 N.Y.S.2d at 533–37.
Thus, any claims
based on express warranties made through affirmations of fact or
promises are time-barred.
C. Implied Warranty of Merchantability
Wolf also asks for summary judgment on the implied
untimely based on the four-year statute of limitations because
there was no sale transaction for the 2014 replacement range,
(Def.’s Br. at 12–14); (2) the Kails lack privity with Wolf, in
part, because Ivan’s employer purchased the original range in
2006, (id. at 15); and (3) it is undisputed that the ranges are
merchantable because the issue is cosmetic, not functional, (id.
As a quick primer, contracts of sale contain an
implied warranty of merchantability when, as here, “the seller
is a merchant with respect to goods of that kind.”
Goods are merchantable if they are, among other
things, “fit for the ordinary purposes for which such goods are
Id. § 2-314(2)(c).
Beginning with Wolf’s first argument, Article 2 of the
UCC “applies to transactions in goods.”
Id. § 2-102.
contract to sell goods at a future time.”
Id. §§ 2-106(1).
Gifts would then fall outside of Article 2, but some courts have
found that a combined offering of a free good and a purchased
good would receive an implied warranty.
See, e.g., E.I. du Pont
De Nemours & Co., Inc. v. Kaufman & Chernick, Inc., 337 Mass.
216, 220, 148 N.E.2d 634, 636 (1958) (free anti-freeze after
purchasing tires because “the purchaser received the ‘gift’ only
in connection with the purchase of another item”); Levondosky v.
drinks after purchasing gambling chips because the casino was
“not offering these drinks out of any sense of hospitality or
charity”); Gunning v. Small Feast Caterers, Inc., 4 Misc. 3d
209, 212, 777 N.Y.S.2d 268, 271 (Sup. Ct., Kings Cty., 2004)
“restaurant impliedly warranted that the water it served . . .
was fit for consumption”).
Although the Second Circuit has not considered this
argument in Neuhoff v. Marvin Lumber & Cedar Co., 370 F.3d 197
(1st Cir. 2004).10
In that case, a windows manufacturer provided
Neither side briefed this issue, but as a catch-all, the Kails
urge that if the breach-of-the-written-warranty claim survives
summary judgment, “the rest of [Wolf’s] arguments fall like
dominos.” (Pls.’ Br. at 10; see also id. at 24 (“The oven at
issue in this litigation was delivered to Plaintiffs on April 2,
2014. . . . That oven was delivered within the [written
warranty]. . . . And with these two facts taken as true,
Plaintiff’s claims are timely.”).) But those blanket statements
replacements windows after the warranty period had expired.
Soon after, an inspector concluded that several
windows, including some of the newly installed windows, were
Id. at 200.
The buyers requested new windows for
free, but the seller declined and offered replacement windows
only at a discounted price.
The buyers filed suit, arguing
that the newly installed windows “should be replaced because
they came with implied warranties.”
Id. at 205.
windows are more akin to a gift and that thus there was no
implied warranty on the windows.”
Although a free good
could be deemed a sale, the court determined that “[i]n such a
situation, the free good is provided in a package with the paid
for good,” such as the examples above: free anti-freeze with
tires or free beverages with gambling chips.
transaction,” there was no implied warranty protection.
Turning to the case at hand, it is undisputed that the
2014 replacement unit was not packaged with a purchase.
material fact about whether the Kails’ warranty had expired.
With the exception of the allegedly modified warranty described
are unavailing because the claims require proof of different
above, any cosmetic-related damages were covered by Wolf’s full
The parties agree that the
Kails received a replacement range on March 9, 2012 and April 2,
(Pls.’ Br. at 6–7 (citing Stetson Decl. ¶ 4).)
warranty of the March 9, 2012 replacement expired on March 9,
2014, which could turn the April 2, 2014 replacement into a
But the Complaint asserts that “[i]n October 2013, Wolf
replaced the March 2012 oven with a similar 48-inch range.”
(Compl. ¶ 51.)
Ivan recalls this replacement; Melanie does not.
(Ivan Tr. 162:5–8; Melanie Tr. 155:2–4.)
In their briefs, both
parties fail to reference this replacement range.
Br. at 4 (describing the warranty agreement on the March 2012
replacement units but omitting the October 2013 range).)
Ivan’s word for it, as the Court must, there is an issue of fact
about whether the Kails received an October 2013 replacement
If they did receive such a range, the warranty period
Wolf’s second argument is that “the lack of privity
provides an additional, independent reason for dismissing the
implied warranty claim to the extent it is based on the 2006
(Def.’s Br. at 15.)
Without going any further, the
Court can reject this argument because the range at issue is
(See Pls.’ Br. at 24–25.)
based on the 2014 replacement.11
The Court now turns to the final argument: whether
there is a genuine issue of material fact that the 2014 range
To meet that definition, goods must be, among
other things, “fit for the ordinary purposes for which such
goods are used.”
N.Y. U.C.C. § 2-314(2)(c).
Of course, “goods
Prohaska v. Sofamor, S.N.C., 138 F. Supp. 2d 422, 449 (W.D.N.Y.
2001). But at the same time, they must do “‘what they were
supposed to do for as long as they were supposed to do it.’”
Id. (quoting Groome v. Matsushita Elec. Corp. of Am., No. 92-CV3073, 2000 WL 341134, at *6 (E.D.N.Y. Mar. 30, 2000)).
Dental veneers and paint products, for example, are cosmetic by
See, e.g., Golden v. Den-Mat Corp., 47 Kan. App. 2d
488, 489, 276 P.3d 773, 798–99 (2012); AutoZone, Inc. v. Glidden
Co., 737 F. Supp. 2d 936, 949 (W.D. Tenn. 2010).
On the other
hand, a car has a non-aesthetic purpose: transportation.
even if the car is fit for a daily commute or a cross-country
merchantability if the car “smells, lurches, clanks, and emits
Wolf, on the other hand, impliedly concedes that the 2009
upgrade does constitute a transaction between the Kails and
Wolf. (See Def.’s Br. at 15.)
smoke over an extended period of time.”
See Isip v. Mercedes-
Benz USA, LLC, 155 Cal. App. 4th 19, 27, 65 Cal. Rptr. 3d 695,
700 (Cal. App. 2007).
Or said another way, cosmetic damages may
affect the functionality of the good.
Cf. Carey v. Chaparral
(granting summary judgment because “the overwhelming evidence
cosmetic problem and in no way impact the boat’s ordinary use”).
Here, the ordinary purpose of a Wolf range is to cook
Although the Kails continue to use their range, it is
unclear whether chipped porcelain contaminates food cooked in
See Stearns v. Select Comfort Retail Corp., No. 08-
CV-2746, 2009 WL 1635931, at *8 (N.D. Cal. June 5, 2009) (“The
fact that a person still may sleep on a moldy bed does not bar
as a matter of law a claim for breach of the implied warranty of
Take Ivan’s deposition testimony:
When you say there was an issue with
the cavity, what are you referring to?
The blue cavity chipping or peeling or
spidering and particles flying around
in the oven, yes.
durability of the porcelain may affect the functionality of the
After using the self-clean function, porcelain pieces may
fly onto the food, and so the range may be incapable of being
cleaned, thus preventing the Kails from using it.
the Court denies summary judgment on the implied warranty claim.
Magnuson-Moss Warranty Act
As the federal “lemon law,” the MMWA is “designed to
prevent deception, and improve competition in the marketing of
Pyskaty v. Wide World of Cars, LLC, 856
F.3d 216 (2d. Cir. 2017) (internal quotation marks and citation
“The MMWA, however, creates no additional bases for
In that regard, “claims under the [Act] stand
or fall with the express and implied warranty claims under state
383952, at *4 (S.D.N.Y. Jan. 18, 2011) (internal quotation marks
and citation omitted).
Because there are issues of fact on the
must move forward.
Negligent Misrepresentation Claim
misrepresentation claim, which requires proof of five factors:
made a false representation that he or she should have known was
incorrect; (3) the information supplied in the representation
was known by the defendant to be desired by the plaintiff for a
serious purpose; (4) the plaintiff intended to rely and act upon
it; and (5) the plaintiff reasonably relied on it to his or her
See Hydro Inv’rs, Inc. v. Trafalgar Power Inc., 227
F.3d 8, 20 (2d Cir. 2000).
personal injury or property damage.
EED Holdings v. Palmer
purchaser is limited to contract claims against the manufacturer
Constr. Co. v. Elgood Mayo Corp., 56 N.Y.2d 667, 669, 436 N.E.2d
1322, 1323, 451 N.Y.S.2d 720 (1982)).
Here, it is undisputed
that the damages sought are remediable in contract, and so the
Counterstmt. ¶ 30.)
Those Certain Interested Underwriters v. Farley Grp.,
Nos. 12-CV-0707 & 13-CV-0385, 2015 WL 5602924, at *32 (N.D.N.Y.
Sept. 23, 2015).
As the Second Circuit has recognized, “whether
a special relationship exists between two parties is an issue of
Suez Equity Investors, L.P. v. Toronto-Dominion Bank,
250 F.3d 87, 103 (2d Cir. 2001).
For the purposes of this
confidence existed between the parties”; and (3) “whether the
speaker was aware of the use to which the information would be
put and supplied it for that purpose.”
Kimmell v. Schaefer, 89
N.Y.2d 257, 264, 675 N.E.2d 450, 454, 652 N.Y.S.2d 715 (1996).
New York courts have imposed liability “only on those persons
who possess unique or specialized expertise, or who are in a
special position of confidence and trust with the injured party
examples are lawyers, engineers, and accountants who, “by virtue
of their training and expertise, may have special relationships
of confidence and trust with their clients.”
comprised of . . . ‘casual’ statements and contacts.”
But in the commercial context, a special relationship
may exist if the parties shared a higher degree of trust and
reliance than that of an ordinary buyer and seller.
Pacific, Inc. v. Hilton Hotels Corp., No. 03-CV-8258, 2004 WL
868211, at *8 (S.D.N.Y. Apr. 21, 2004).
Consider, for example,
situations “where defendants sought to induce plaintiffs into a
business transaction by making certain statements or providing
specific information with the intent that plaintiffs rely on
those statements or information.”
Id. (collecting cases).
finds genuine issues of fact that preclude summary judgment.
expertise on the quality and operations of its ranges.
and crucial to the analysis, the parties shared a relationship
that spanned nine years with repeated service calls that yielded
at least ten replacement parts and units.
Cf. Alley Sports Bar
LLC v. SimplexGrinnell LP, 58 F. Supp. 3d 280, 295 (W.D.N.Y.
2014) (rejecting a special-relationship argument at the motionto-dismiss stage because the parties “engaged in an ordinary
business transaction over the course of three days” where a
system, which then caused property damage).
As for the third
factor, a reasonable factfinder could conclude that the Kails
relied on Wolf’s representations to upgrade their smaller range
to a larger model.
Ivan, at his sworn deposition, recalled a
Wolf’s smaller units.
(See, e.g., Ivan Tr. 58:14–18 (“We knew
what the product was and we were under the impression that Wolf
explained at the time that if we go to a different oven, we
should not have these problems that we had in the past.
agreed to go to a larger oven . . . .”).)
Thus, there are
genuine issues of material fact, precluding summary judgment,
about whether the parties enjoyed a closer relationship than
that of an ordinary buyer and seller.
alleging violations of New York’s deceptive practices and false
advertising laws, N.Y. GEN. BUS. L. §§ 349, 350--are untimely.
(Def.’s Br. at 22–24.)
The Court agrees.
Claims under Sections 349 and 350 have a “three-year
statute of limitations.”
Martin Hilti Family Trust v. Knoedler
Gallery, LLC, 137 F. Supp. 3d 430, 466 (S.D.N.Y. 2015).
clock begins to run when the plaintiff is injured, not when the
alleged deceptive practice is discovered.
Marshall v. Hyundai
Motor Am., 51 F. Supp. 3d 451, 461 (S.D.N.Y. 2014).
like this one, the injury occurs along with the sale transaction
self-cleaning feature or the durability of the porcelain--was in
because “the defective brake systems were in place when all
three Plaintiffs purchased their vehicles”); Bristol Vill., Inc.
v. Louisiana-Pacific Corp., 170 F. Supp. 3d 488, 499 (W.D.N.Y.
2016) (concluding that a Section 349 claim was untimely because
“the [product] was defective when it was purchased, delivered,
To survive summary judgment under either statute, a
plaintiff must show: “(1) the defendant’s deceptive acts were
directed at consumers, (2) the acts are misleading in a material
Gristede’s Foods, Inc. v. Unkechauge Nation, 532 F. Supp. 2d
439, 451 (E.D.N.Y. 2007) (“Indeed, courts have noted that the
standards under both sections are substantively identical.”).
The issue here is “whether the conduct or advertisements were
See Braynina v. TJX Cos., Inc., No. 15-
CV-5897, 2016 WL 5374134, at *4 (S.D.N.Y. Sept. 26, 2016).
important to consumers and likely to affect their choice of
Id. at *5.
Today’s result is straightforward: Any
material omissions or misrepresentations, as described above,
relate back to the initial purchase in 2006 or the paid upgrade
(See Stetson Decl. ¶¶ 3-4.)
Thus, summary judgment is
granted on the statutory claims.
Entry 24) is GRANTED IN PART and DENIED IN PART.
As for the
(1) breach of the written warranty; (2) breach of the implied
warranty of merchantability; (3) violation of the Magnuson-Moss
Before Plaintiffs file a motion for class
submit a proposed briefing schedule within twenty (20) days of
the date of this Memorandum and Order.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
21 , 2017
Central Islip, New York
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