Kampuries v. American Honda et al
Filing
59
ORDER granting 48 Motion to Dismiss for Failure to State a Claim; granting 52 Motion to Dismiss; granting 31 Motion to Dismiss for Failure to State a Claim. For the reasons set forth herein, the Court concludes that defendants' motions to dismiss plaintiff's amended complaint should be granted. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/6/2016. (Akers, Medora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-5061 (JFB) (AKT)
_____________________
ANDREW KAMPURIES,
Plaintiff,
VERSUS
AMERICAN HONDA MOTOR CO., INC., TRW AUTOMOTIVE HOLDING CORP,
AND AUTOLIV ASP INC.,
Defendants.
___________________
MEMORANDUM AND ORDER
September 6, 2016
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff,
Andrew
Kampuries
(hereinafter, “plaintiff”), proceeding pro se,
brings this action asserting a claim for
negligence, including design defect,
manufacturing defect, and failure to warn,
and a claim for fraudulent concealment.
Defendants, American Honda Motor Co.,
Inc.
(hereinafter,
“Honda”),
TRW
Automotive Holding Corp (hereinafter,
“TRW”), and Autoliv Asp Inc. (hereinafter,
“Autoliv”)
(collectively,
hereinafter,
“defendants”) now move to dismiss
plaintiff’s amended complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6).
For the reasons set forth below,
defendants’ motions to dismiss are granted.
In particular, the Court concludes that
plaintiff’s claims are barred by the statute of
limitations, plaintiff has failed to state a claim
for fraudulent concealment, and there is no
basis for equitable tolling of his claims.
I.
A.
BACKGROUND
Factual Background
The following facts are taken from
plaintiff’s filings, and are not findings of fact
by the Court. Instead, the Court will assume
these facts to be true and, for purposes of the
pending motion to dismiss, will construe
them in a light most favorable to plaintiff, the
non-moving party.
On December 5, 2007, plaintiff, while
driving his 2006 Honda Civic, drifted off the
road and struck a tree. (Pl.’s Opp’n to
Honda’s Mot. to Dismiss (hereinafter,
“Honda Opp’n”) 13, ECF No. 42.) Plaintiff
claims that, although he was traveling at 55
miles per hour, his airbag did not deploy upon
impact. (Id.)
Dismiss
(hereinafter,
Opp’n”) 2, ECF No. 54.)
Over seven years later, on April 6, 2015,
allegedly prompted by an October 2014
recall notice he received concerning
malfunctioning Takata brand airbags
installed in certain Honda vehicles,1 plaintiff
filed a complaint against Honda and Takata
in the Southern District of Florida as part of a
pending class action related to defective
Takata airbag inflators used in Honda cars.
However, it was later determined that
plaintiff’s vehicle contained an Autoliv, not
Takata, brand airbag inflator, and therefore
his case was removed from the class action
and transferred to this Court. (See ECF No.
21; Ex. to Honda Opp’n 176, ECF No. 42-1.)
Plaintiff thereafter added Autoliv and TRW
as defendants. (ECF Nos. 29, 30, 36.)
“Autoliv/TRW
He further contends that, “upon
information and belief, Honda has known of
the [i]nflator [d]efect in the Honda airbags in
Honda’s vehicles since 2000 s (sic) . . . [and]
[t]he [v]ehicle [m]anufacturer [d]efendats2
have known or should have known of the
[i]nflator [d]efect in the Honda airbags since
20003.” (Id. at 3.) He claims, however, that
defendants “concealed from or failed to
notify [him] and the public of the full and
complete nature of the [i]nflator [d]efect” and
that they “actively concealed the true
character, quality and nature of the vehicles
and knowingly made misrepresentations
about the quality, reliability, characteristics
and performance of the vehicles.” (Id.)
Plaintiff’s amended complaint, filed
September 21, 2015, alleges only that “this
was negligent and [r]eckless not alerting the
public for years and hided (sic) this [d]eath
trap car from my self (sic) and family,[ ]not
knowing if the airbags will deploy or not.”
(Am. Compl. 1, ECF No. 33.)
His
oppositions to defendants’ motions to dismiss
elaborate somewhat on these allegations,
asserting that “[d]uring the accident, the
Autoliv[ ]airbag with trw.aribag (sic) sensor
installed in the 2006 Honda [C]ivic failed to
deploy,” and that “[t]he speed and
circumstances of the accident were such that
the airbag, if not defective, should have
deployed.” (Honda Opp’n 13; see also Pl.’s
Opp’n to Autoliv and TRW’s Mots. to
Finally, he states that “[t]his is a cause of
action for negligence, including design
defect, manufacturing defect, and failure to
warn.” (Id. at 2.) However, based on the
allegations in his amended complaint and
oppositions, it appears he also seeks to assert
a claim for fraudulent concealment.
B.
Procedural History
Honda filed its motion to dismiss
plaintiff’s amended complaint on October 14,
2015 (ECF No. 31), and plaintiff submitted a
document, presumably intended to be his
opposition, on November 2, 2015 (ECF No.
1
Plaintiff provides one of the recall notices he
received, which states: “Honda has decided that a
defect which relates to motor vehicle safety exists in
certain 2003-07 model year Accord vehicles. . . .
Specifically, in some vehicles, the passenger’s front
airbag inflator could produce excessive internal
pressure upon deployment[,] . . . [causing] metal
fragments . . . to pass through the airbag cushion
material possibly causing serious injury or fatality.”
(Ex. to Honda Opp’n 4.)
intends to refer to defendants Autoliv and TRW.
In plaintiff’s opposition to Honda’s motion to
dismiss, he alleges that the “vehicle manufacturer
defendants” knew of these issues since 2008. (Honda
Opp’n 3.) However, a month later, in his opposition
to Autoliv and TRW’s motions to dismiss, he states
that the vehicle manufacturer defendants knew about
the inflator defects since 2000. (Autoliv/TRW Opp’n
3.) Although, for purposes of the instant motion, the
Court assumes that the allegations in the later-filed
document are accurate, this discrepancy in the dates
does not impact the Court’s analysis.
3
Plaintiff does not identify who the “vehicle
manufacturer defendants” are, but presumably, he
2
2
42). On November 23, 2015, Autoliv moved
to dismiss (ECF No. 48), and on December 2,
2015, TRW moved to dismiss (ECF No. 52).
Plaintiff filed a letter with the Court on
December 21, 2015 (ECF No. 54), on which
he wrote “opposition,” though he did not
specify whether he was responding to
Autoliv’s motion, TRW’s motion, or both.
Honda, Autoliv, and TRW replied on
November 30, 2015, January 6, 2016, and
January 13, 2016, respectively. (See ECF
Nos. 49, 57, 58.) The Court has considered
all of the parties’ submissions.
II.
legal conclusions can provide the framework
of a complaint, they must be supported by
factual allegations.” Id. Second, if a
complaint contains “well pleaded factual
allegations, a court should assume their
veracity and then determine whether they
plausibly give rise to an entitlement to relief.”
Id.
The Court notes that in adjudicating a
Rule 12(b)(6) motion, it is entitled to
consider: “(1) facts alleged in the complaint
and documents attached to it or incorporated
in it by reference, (2) documents ‘integral’ to
the complaint and relied upon in it, even if
not attached or incorporated by reference, (3)
documents or information contained in
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., 273 F. Supp. 2d 351, 356-57
(S.D.N.Y. 2003) (internal citations omitted),
aff’d in part & rev’d in part on other grounds
sub nom. Lentell v. Merrill Lynch & Co., 396
F.3d 161 (2d Cir. 2005).
STANDARD OF REVIEW
In reviewing a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6),
the Court must accept the factual allegations
set forth in the complaint as true and draw all
reasonable inferences in favor of the plaintiff.
See, e.g., Cleveland v. Caplaw Enters., 448 F
.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford
Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.
2005). “In order to survive a motion to
dismiss under Rule 12(b)(6), a complaint
must allege a plausible set of facts sufficient
‘to raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S.
at 570.
Finally, where, as here, the plaintiff is
proceeding pro se, courts are “‘obliged to
construe his pleadings liberally.’” Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008) (quoting McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004)); see also McPherson v. Coombe, 174
F.3d 276, 280 (2d Cir. 1999) (stating that a
pro se plaintiff’s pleadings must be
interpreted “to raise the strongest arguments
that they suggest” (citation and internal
quotation marks omitted)). However, a pro
se plaintiff’s complaint, while liberally
interpreted, still must “‘state a claim to relief
that is plausible on its face.’” Mancuso v.
The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662 (2009). The Court instructed
district courts first to “identify[] pleadings
that, because they are no more than
conclusions, are not entitled to the
assumption of truth.” Id. at 679. “While
3
defect, and failure to warn.” (Autoliv/TRW
Opp’n 2.) Negligence causes of action
relating to personal injuries sustained as a
result of an allegedly defective product are
subject to a three-year statute of limitations in
New York. See Hanlon v. Gliatech, Inc., No.
CV-07-1737 SJF AKT, 2008 WL 4773430,
at *2, *4 (E.D.N.Y. Oct. 27, 2008)
(recognizing that three-year statute of
limitations applies to negligence claims that
assert that “a defective product has been the
cause of personal injury”); see also N.Y.
C.P.L.R. § 214(5).
Hynes, 379 F. App’x 60, 61 (2d Cir. 2010)
(quoting Iqbal, 556 U.S. 662); see also
Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009).
III.
DISCUSSION
A.
Timeliness of Claims
1.
Statutes of Limitations
“It has long been established as a matter
of federal law that state statutes of limitations
govern the timeliness of state law claims
under federal diversity jurisdiction[,] [and
that] [s]tate law also determines the related
questions of what events serve to commence
an action and to toll the statute of limitations
in such cases.” Personis v. Oiler, 889 F.2d
424, 426 (2d Cir. 1989).
Plaintiff also makes a claim for
fraudulent concealment. In New York, fraud
claims must be asserted within the greater of
“six years from the date the cause of action
accrued or two years from the time the
plaintiff . . . discovered the fraud, or could
with reasonable diligence have discovered
it.”4 N.Y. C.P.L.R. § 213(8).
In addition, “[b]ecause the statute of
limitations is an affirmative defense, the
defendant bears the burden of establishing by
prima facie proof that the limitations period
has expired since the plaintiff’s claims
accrued.” Overall v. Estate of Klotz, 52 F.3d
398, 403 (2d Cir. 1995). “However, the
plaintiff bears the burden of proving that a
particular statute of limitation has been
tolled.” Voiceone Commc’ns, LLC v. Google
Inc., No. 12 CIV. 9433(PGG), 2014 WL
10936546, at *8 (S.D.N.Y. Mar. 31, 2014)
(quoting Cuccolo v. Lipsky, Goodkin & Co.,
826 F. Supp. 763, 767 n.3 (S.D.N.Y. 1993)).
Accordingly, to be timely, plaintiff’s
negligence claim must have accrued within
three years, and plaintiff’s fraudulent
concealment claim must have accrued, at
most, six years, prior to the filing of the
complaint in April 2015. Defendants argue
that the claims accrued at the time of
plaintiff’s accident in 2007 and, therefore, are
time-barred and subject to dismissal.
Plaintiff, however, argues that his causes of
action did not accrue until he discovered that
the airbag that defendants installed in his
vehicle was defective, which he claims did
not occur until he received the October 20145
Plaintiff asserts a claim for “negligence,
including design defect, manufacturing
However, given that
plaintiff’s fraudulent
concealment claim is untimely under the more
generous six-year limitations period and insufficiently
pled, see infra, the Court need not decide this issue.
4
Notwithstanding the general six-year limitations
period for fraud claims, plaintiff’s fraudulent
concealment claim is most likely subject to a threeyear statute of limitations “because the claim is merely
incidental to the negligence claim.” Fisher v. APP
Pharm., LLC, 783 F. Supp. 2d 424, 429 (S.D.N.Y.
2011) (fraudulent concealment claim was subject to
three-year statute of limitations because it was based
on failure to disclose product design defect and,
therefore, was merely incidental to negligence claim).
5
Although plaintiff claims that it was the October
2014 recall notice that alerted him to the fact that his
vehicle had a defective airbag, it appears that he
received other recall notices prior to this date. (See
Honda Opp’n 13 (stating in October 2015 that he had
4
recall notice from Honda regarding
malfunctioning airbags.
(Autoliv/TRW
Opp’n 2 (“The causes of action alleged herein
did not accrue until myself discovered that
[defendants] vehicles had the defective
airbags[]. However, I had no realistic ability
to discern that the vehicles were defective
until – at the earliest – after either the
defective airbag or my vehicles were
recalled.”).)
2.
airbag did not deploy, rather than, as he
contends, in October 2014, when he
supposedly discovered that his injuries were
attributable to defendants’ alleged negligence
in designing his airbag. See, e.g., Greenwald
v. City of New York, No. 06-CV-2864 RJD
JMA, 2012 WL 6962297, at *1, *8 (E.D.N.Y.
July 19, 2012) (“New York law is clear that .
. . statutes of limitations commence running
upon commission of a wrong, irrespective of
a plaintiff’s ignorance of that wrong or its
cause.”); Caronia v. Philip Morris USA, Inc.,
No. 06-CV-224 CBA/SMG, 2010 WL
520558, at *4 (E.D.N.Y. Feb. 11, 2010)
(“[N]egligence claims accrue, at latest, at the
time of the injury caused by [the defendant’s]
allegedly defective product.”), aff’d, 715
F.3d 417 (2d Cir. 2013), certified question
accepted, 990 N.E.2d 130 (N.Y. 2013), and
certified question answered, 5 N.E.3d 11
(N.Y. 2013); Owens v. Presbyterian Hosp. in
City of New York, No. 94 CIV. 6004 (RPP),
1995 WL 464950, at *3 (S.D.N.Y. Aug. 4,
1995) (noting that “[t]he New York Court of
Appeals has consistently rejected the
argument that the statute of limitations
accrues upon discovery of the alleged
negligence” and holding that plaintiff’s claim
accrued on the date of the hospital visit when
doctors failed to detect his cracked rib, not
several years later when he learned that the
hospital had negligently failed to discover the
cracked rib), aff’d sub nom. Owens v.
Presbyterian Hosp., 101 F.3d 682 (2d Cir.
1996); Semenza v. Lilly’s Nails, 983
N.Y.S.2d 20, 21 (App. Div. 2014) (plaintiff’s
claim against nail salon accrued when she
sought medical treatment for a cut sustained
during pedicure, not on the later date when
she discovered that her pain was caused by a
sliver of a razor that had become embedded
in her foot during the pedicure); Playford v.
Phelps Memorial Hosp. Ctr., 680 N.Y.S.2d
267 (App. Div. 1998) (holding that the statute
Timeliness of Negligence Claim
“It is well established that in any action to
recover damages for negligence[,] . . . the
plaintiff’s claim accrues upon the date of
injury,” Brooklyn Union Gas Co. v. Hunter
Turbo Corp., 660 N.Y.S.2d 877, 878 (App.
Div. 1997), “even if the plaintiff is unaware
that he or she has a cause of action” at the
time of injury, Woodlaurel, Inc. v. Wittman,
606 N.Y.S.2d 39, 40 (App. Div. 1993). See
also Kronos, Inc. v. AVX Corp., 612 N.E.2d
289, 291-92 (N.Y. 1993) (“[A] tort cause of
action cannot accrue until an injury is
sustained. That, rather than the wrongful act
of defendant or discovery of the injury by
plaintiff, is the relevant date for marking
accrual.” (internal citations omitted)). “The
rationale is that the injury puts the putative
plaintiff on inquiry notice and, therefore,
charges him or her ‘with responsibility for
investigating, within the limitations period,
all potential claims and all potential
defendants.’” Zimmerman v. Poly Prep
Country Day Sch., 888 F. Supp. 2d 317, 337
(E.D.N.Y. 2012) (quoting Doe v.
Archdiocese of Wash., 689 A.2d 634, 644
(Md. 1997) and citing Zumpano, 849 N.E.2d
926 (N.Y. 2006)).
Thus, plaintiff’s negligence claim
accrued on December 5, 2007, the date he
was injured when the purportedly defective
received several recall notices from Honda during the
“last three years”).)
5
of limitations for a negligence cause of action
began to run on the date that the plaintiff was
injured by the swapping of her test results
with another patient’s, not several years later,
when she learned that the defendant had
negligently switched her results); City of
Niagara Falls v. Rudolph, 469 N.Y.S.2d 42,
43 (App. Div. 1983) (claims based on
negligence accrued at the time of the injury,
not later when the defective and negligently
performed work was uncovered).6
3.
Timeliness of Fraudulent
Concealment Claim
A fraud claim, in contrast, can accrue on
the date that the plaintiff discovers the fraud.
See N.Y. C.P.L.R. § 213(8). As indicated
above, it is plaintiff’s position that he did not
discover the supposed fraud until he received
the October 2014 recall notice, alerting him
to defects with Takata airbags.
This
contention is improbable (and, in fact,
impossible).7 Given that plaintiff’s argument
is that defendants hid from him the fact that
his airbag was defective and would not
deploy, this supposed fraud would actually
have been uncovered as soon as plaintiff
Because plaintiff’s claim accrued at the
time of his accident in 2007, but his lawsuit
was not filed until 2015, his negligence claim
is untimely and must be dismissed.
6
Although this issue is controlled by New York State
law on accrual of claims, the Court notes, as a point of
reference, that courts in other jurisdictions that have
been presented with arguments similar to plaintiff’s
have likewise ruled that the cause of action accrues
when the injury is sustained, not when the plaintiff
allegedly uncovers that the product was defective.
See, e.g., Santiago-Padilla v. Budget Rent-A-Car
Caribbean Corp., No. CIV. 06-1573 (JAF), 2007 WL
188588, at *3 (D.P.R. Jan. 22, 2007) (statute of
limitations on the plaintiffs’ claim began to run on the
date of their automobile accident, not when they later
learned that the manufacturer had issued a safety recall
notice with respect to the vehicle they were driving at
the time of the accident); Norris v. Yamaha Motor
Corp. U.S.A., No. 2008 CA 00296, 2009 WL 2509407,
at *5 (Ohio Ct. App. Aug. 17, 2009) (concluding that
negligence claim against the defendant vehicle
manufacturer accrued at the time of the accident which
resulted in the plaintiff’s injuries, rather than at the
time the plaintiff became aware of a letter from the
defendant warning of a possible defect with his offroad vehicle); Baxley v. Harley-Davidson Motor Co.,
875 N.E.2d 989, 991 (Ohio Ct. App. 2007) (holding
that the plaintiff’s cause of action accrued on the date
of his motorcycle accident, not when he subsequently
received a recall notice advising him of a defect with
this motorcycle); Hazel v. Gen. Motors Corp., 863 F.
Supp. 435 (W.D. Ky. 1994) (ruling that the plaintiff’s
products liability claim accrued when the plaintiff’s
truck rolled over and exploded, as opposed to later
when he saw a television program concerning the
faulty design of his truck), aff’d in part and remanded,
83 F.3d 422 (6th Cir. 1996); Mine Safety Appliances
v. Stiles, 756 P.2d 288, 292 (Alaska 1988) (concluding
that the plaintiff’s claim accrued at the time of his
injury, not at a later date when he “actually discovered
evidence supporting his claim that his safety helmet
was defectively designed”).
The Court also acknowledges that there are other
cases that hold that the claim does not accrue until the
plaintiff learns of the design defect. See, e.g., In re
Bridgestone/Firestone, Inc., 200 F. Supp. 2d 983, 990
(S.D. Ind. 2002) (concluding that the plaintiffs’ causes
of action to recover for injuries sustained when their
tires exploded, causing them to crash, accrued, not
when they “knew that their injuries were caused by
their tires,” but rather, once they learned “that their
injuries were caused by a defect in the tires”); Anson
v. Am. Motors Corp., 747 P.2d 581, 586 (Ariz. Ct.
App. 1987).
However, in addition to being
inconsistent with the law in New York, the Court is
also persuaded that this approach is not appropriate in
the instant case because plaintiff could have had no
question that the airbag was defective when it did not
deploy, given that an airbag’s singular purpose is to
inflate upon impact.
7
It does not appear that the notices could actually have
alerted plaintiff to the defect from which he alleges his
airbag suffered. The one notice he provided to the
Court warned that metal fragments could be released
when the passenger airbag deployed, whereas in
plaintiff’s case, he alleges that the driver’s airbag did
not deploy. (See Ex. to Honda Opp’n 4.)
6
crashed and his airbag did not inflate.8 Thus,
as plaintiff must have discovered the alleged
fraud at the time of his accident in 2007, and
his fraudulent concealment claim was not
asserted until 2015—well after the
limitations period had run9—his claim is
untimely.
B.
requires, in addition to allegations of scienter,
reliance, and damages, an allegation that the
defendant had a duty to disclose material
information and that it failed to do so.” Id.
(quoting High Tides, LLC v. DeMichele, 931
N.Y.S.2d 377, 380 (App. Div. 2011)).
“Claims of fraud must be pled with
particularity, under both New York and
Federal rules of procedure.” Boniel v. U.S.
Bank N.A., No. 1:12-CV-3809 ERK MDG,
2013 WL 458298, at *2 (E.D.N.Y. Feb. 6,
2013) (citing Fed. R. Civ. P. 9(b) and N.Y.
C.P.L.R. § 3016(b)).
Sufficiency of Fraudulent
Concealment Claim
Moreover, in the alternative, even if it
were timely, the Court concludes that
plaintiff’s fraudulent concealment claim fails
to state a cause of action. “A cause of action
sounding in fraud must allege that the
defendant knowingly misrepresented or
concealed a material fact for the purpose of
inducing another party to rely upon it, and
that the other party justifiably relied upon
such misrepresentation or concealment to his
or her own detriment.” Schwatka v. Super
Millwork, Inc., 965 N.Y.S.2d 547, 550 (App.
Div. 2013).
“[F]raudulent concealment
Here, plaintiff has failed to state a claim
for fraudulent concealment. Plaintiff offers
only the conclusory assertion that defendants
knew about defects in the airbags since 2000,
but “concealed from or failed to notify [him]
and the public of the full and complete nature
of the [i]nflator [d]efect . . . [and] knowingly
made misrepresentations about the quality,
reliability, characteristics and performance of
the vehicles.” (See Autoliv/TRW Opp’n 3.)
For the same reason, plaintiff’s attempt to argue that
the statute of limitations should be equitably tolled
based on defendants’ alleged concealment of his
defective airbag must also fail. As an initial matter,
equitable tolling “is a doctrine generally applied to
federal, as opposed to state, causes of action.” Kwas
v. Intergraph Gov’t Sols., No. 15CV5897JFBAYS,
2016 WL 4502039, at *3 (E.D.N.Y. Aug. 24, 2016);
Von Hoffmann v. Prudential Ins. Co. of Am., 202 F.
Supp. 2d 252, 264 (S.D.N.Y. 2002) (“The doctrine of
equitable tolling does not apply to these state law
claims, as the doctrine only tolls the statute of
limitations with regard to federally created causes of
action.”); Jang Ho Choi v. Beautri Realty Corp., 22
N.Y.S.3d 431, 432 (App. Div. 2016) (“[T]he doctrine
of equitable tolling is not available in state causes of
action in New York.”); Shared Commc’ns Servs. of
ESR, Inc. v. Goldman, Sachs & Co., 832 N.Y.S.2d 32,
33-34 (App. Div. 2007) (“The doctrine of equitable
tolling is generally applied to federal causes of action
in New York.”); but see De Sole v. Knoedler Gallery,
LLC, 137 F. Supp. 3d 387, 423 (S.D.N.Y. 2015)
(“‘Under New York law, the doctrines of equitable
tolling or equitable estoppel may be invoked to defeat
a statute of limitations defense when the plaintiff was
induced by fraud, misrepresentations or deception to
refrain from filing a timely action.’” (quoting
Marshall v. Hyundai Motor Am., 51 F. Supp. 3d 451,
462 (S.D.N.Y. 2014))).
However, even if
appropriately invoked here, equitable tolling (or
equitable estoppel) would not apply. As explained
above, plaintiff cannot argue that defendants
fraudulently concealed his cause of action until he
received the recall notice because his suit against
defendants is grounded on the alleged defective nondeployment of his airbag; thus, as soon as the airbag
did not inflate, his claims against defendants would
have been readily apparent. (Plaintiff even appears to
acknowledge this fact, stating that “[t]he speed and
circumstances of the accident were such that the
airbag, if not defective, should have deployed.”
(Honda Opp’n 13.)) Accordingly, no basis for
equitable tolling (or equitable estoppel) exists.
8
9
As noted, New York law provides that a plaintiff has
six years from the date that the fraud accrued or two
years from the date the plaintiff discovers the fraud to
file his action. Under either standard, plaintiff’s claim,
filed over seven years after the accident, would be
untimely.
7
He makes no other factual allegations to
support his claim that defendants were aware
that his airbag was defective, that they
concealed this information from him, or that
they made any misrepresentations to him.
Such flimsy and unfounded allegations are
insufficient to make out a claim for
fraudulent concealment. See, e.g., Schwatka,
965 N.Y.S.2d at 550-51 (dismissing
fraudulent concealment claim because the
complaint was “devoid of any factual details
regarding the manner in which the defendants
knowingly
concealed
their
alleged
knowledge of the defects”); see also Rafter v.
Liddle, 704 F. Supp. 2d 370, 377-78
(S.D.N.Y. 2010) (plaintiff failed to plead
sufficient facts to support a fraudulent
concealment claim where allegations were
“general, conclusory, and unsupported by
factual underpinnings” and the plaintiff failed
to allege “with any particularity what
Defendants did to conceal any material
information”). Nor has he provided any
allegations suggesting that defendants owed
him a duty to disclose material information.
See Kallista, S.A. v. White & Williams LLP,
27 N.Y.S.3d 332, 345 (Sup. Ct. 2016)
(dismissing fraudulent concealment cause of
action where complaint was “barren of any
allegation that Defendants had a duty to
disclose material information . . . or any facts
that would support the imposition of such a
duty”).10
Accordingly, plaintiff has failed to state a
claim for fraudulent concealment.
IV.
Leave to Replead
Although plaintiff has not requested leave
to replead, the Court has also considered
whether plaintiff should be given an
opportunity to do so. The Second Circuit has
emphasized that “[a] pro se complaint is to be
read liberally. Certainly the court should not
dismiss without granting leave to amend at
least once when a liberal reading of the
complaint gives any indication that a valid
claim might be stated.” Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000) (quotation
marks omitted). Under Rule 15(a) of the
Federal Rules of Civil Procedure, “leave [to
amend] shall be freely given when justice so
requires.” Fed. R. Civ. P. 15(a). Leave to
amend should be denied only for reasons
such as undue delay, bad faith, futility of the
amendment or prejudice to the other party.
See Foman v. Davis, 371 U.S. 178, 182
(1962); Aetna Casualty & Surety Co. v.
Aniero Concrete Co., Inc., 404 F.3d 566, 603
(2d Cir. 2005). The Court shall not permit
plaintiff to replead his claims, as they are
time-barred (with no basis for equitable
tolling), and therefore any amendment would
be futile.
10
Although a duty to disclose may be imposed when
one party possesses special knowledge that is not
available to the party with which it is dealing, and the
first party knows that the second party is acting on
misinformation, see, e.g., Travelers Indem. Co. of
Illinois v. CDL Hotels USA, Inc., 322 F. Supp. 2d 482,
499 (S.D.N.Y. 2004), this obligation is not applicable
in the instant case, as plaintiff has not sufficiently
alleged that defendants possessed any special
knowledge they had a duty to share. Mandarin
Trading Ltd. v. Wildenstein, 851 N.Y.S.2d 71 (Sup. Ct.
2007), aff’d, 884 N.Y.S.2d 47 (App. Div. 2009), aff’d,
944 N.E.2d 1104 (N.Y. 2011).
8
V.
CONCLUSION
For the foregoing reasons, the Court
concludes that defendants’ motions to
dismiss plaintiff’s amended complaint should
be granted.11 The Clerk of the Court shall
enter judgment and close the case.
SO ORDERED.
_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: September 6, 2016
Central Islip, NY
*
*
*
Plaintiff proceeds pro se. American
Honda Motor Co., Inc. is represented by
Grace Jang, Segal McCambridge Singer and
Mahoney, 850 Third Avenue, Suite 1100,
New York, NY 10022. TRW Automotive
Holding Corp is represented by James C.
Ughetta and Brian Keith Gibson, Littleton
Joyce Ughetta Park & Kelly LLP, 4
Manhattanville Road, Suite 202, Purchase,
NY 10577; and Matthew Coveler and
Benjamin T. Zinnecker, Weinstein Tippetts
& Little LLP, 7500 San Felipe, Suite 500,
Houston, TX 77063. Autoliv Asp Inc. is
represented by Peter Joseph Fazio, Aaronson,
Rappaport, Feinstein & Deutsch, 600 Third
Avenue, New York, NY 10016.
11
TRW also asserts that the claims against it should be
dismissed because it is not subject to personal
jurisdiction in New York. Given that the Court has
dismissed plaintiff’s complaint on alternative grounds,
it need not, and does not, reach this argument.
9
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