Potente et al v. CITIBANK, N.A.

Filing 20

MEMORANDUM OF DECISION AND ORDER - For the reasons stated above, the Defendant's 7 motion to dismiss the Plaintiffs' complaint pursuant to Rule 12(b)(6) is granted in its entirety. The Clerk of the Court is respectfully directed to close the case. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 10/17/2017. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RALPH G. POTENTE, RICHARD J. JANKURA,
Plaintiffs,
MEMORANDUM OF
DECISION AND ORDER
16-cv-3969 (ADS)(AYS)

- against CITIBANK, N.A.,
Defendant.
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APPEARANCES:
Stephen C. Silverberg
Attorney for the Plaintiffs
626 RXR Plaza
Uniondale, NY 11556
By:
Stephen C. Silverberg, Esq., of Counsel
Bryan Cave LLP
Attorneys for the Defendants
1290 Avenue Of The Americas
New York, NY 10104
By:
Daniel H. Lewkowicz, Esq.,
Noah M. Weissman, Esq., of Counsel
SPATT, District Judge:

The Plaintiffs Ralph G. Potente (“Potente”) and Richard J. Jankura (“Jankura”)
(collectively, the “Plaintiffs”) brought this action against the Defendant Citibank, N.A. (the
“Defendant” or “Citibank”) for, inter alia, alleged violations of the Truth in Lending Act, 15
U.S.C. 1601 (“TILA”).
Presently before the Court is a motion by the Defendant to dismiss the complaint in its
entirety pursuant to Federal Rule of Civil Procedure (“FED. R. CIV. P.” or “Rule”) 12(b)(6). For
the following reasons, the Defendant’s motion is granted in its entirety.

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I. BACKGROUND
A. The Factual Background
The following facts are drawn from the complaint, and for the purposes of the instant
motion, are accepted as true.
The Plaintiffs reside at 47 Berry Hill Road, Oyster Bay Cove, NY 11771 (the “residence”).
The Plaintiffs have lived there since 1997. The Plaintiffs apparently had an initial mortgage of
$1,000,000, secured by their interest in the residence. The complaint does not state who held the
initial mortgage.
In 2008, the Plaintiffs applied for a mortgage refinance with Citibank.

During the

application process, Citibank ordered an appraisal of the residence. The appraisal valued the
residence at $2,200,000. Citibank informed the Plaintiffs of the appraisal, but the Plaintiffs claim
that they never received a copy of the appraisal. The complaint does not state precisely when the
appraisal occurred, but it happened before the final approval of the loan.
On April 18, 2008, the Plaintiffs executed a Consolidation, Extension, and Modification
Agreement (the “CEMA”) with Citibank. Pursuant to the refinance, the Plaintiffs borrowed
$700,000 from Citibank. The Plaintiffs allege that they relied upon the purportedly inflated
appraisal of $2,200,000 when they signed the CEMA and agreed to take the loan.
The CEMA loan was secured by the Plaintiffs’ interest in the residence. Despite the fact
that the Plaintiffs allege that it was a mortgage refinance, it is not clear from the face of the
complaint whether the initial mortgage was repaid. Nevertheless, the Plaintiffs allege that the
mortgage was transferred to an unknown third party.

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In July of 2014, the Plaintiffs “discovered” that the $2.2 million appraisal was “grossly
inflated,” and that the “actual fair market value of the property at the time of the execution of the
CEMA was $1,200,000.” (Compl. ¶ 8).
In April of 2016, the Plaintiffs mailed a notice of rescission to Citibank. Citibank received
the notice on April 22, 2016. Citibank has allegedly refused to honor the notice of rescission.
B. The Relevant Procedural Background
On July 15, 2016, the Plaintiffs commenced this action by filing a complaint. The
complaint alleges four causes of action. However, one of the causes of action is merely a request
for injunctive relief, which is not a cause of action. Miller v. Wells Fargo Bank, N.A., 994 F. Supp.
2d 542, 558 (S.D.N.Y. 2014) (“[I]njunctions are remedies, not causes of action . . . .”). The three
remaining causes of action are for fraud in the factum, appraisal fraud, and violation of TILA.
The Plaintiffs did not serve the Defendant with the summons and complaint until February
23, 2017.
On April 14, 2017, the Defendant filed the instant motion to dismiss.
II. DISCUSSION
A. The Relevant Legal Standard
In reviewing a motion to dismiss pursuant to Rule 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 Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013); Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006); Bold Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d
Cir. 1995); Reed v. Garden City Union Free School Dist., 987 F. Supp. 2d 260, 263 (E.D.N.Y.
2013).

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Under the now well-established Twombly standard, a complaint should be dismissed only
if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929
(2007). The Second Circuit has explained that, after Twombly, the Court’s inquiry under Rule
12(b)(6) is guided by two principles:
First, although a court must accept as true all of the allegations contained in a
complaint, that tenet is inapplicable to legal conclusions, and [t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do
not suffice. Second, only a complaint that states a plausible claim for relief survives
a motion to dismiss and [d]etermining whether a complaint states a plausible claim
for relief will . . . be a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 129
S. Ct. 1937, 1940, 173 L. Ed. 2d 868 (2009)).
Thus, “[w]hen there are well-pleaded factual allegations, a court should assume their
veracity and . . . determine whether they plausibly give rise to an entitlement of relief.” Iqbal, 556
U.S. at 679.
B. As to the Defendant’s Exhibit
The Defendant attached one exhibit with its motion and memorandum of law—a document
that purports to be an appraisal of the residence commissioned by Potente on December 10, 2013
(the “December 2013 appraisal”). The December 2013 appraisal values the residence at $990,000.
The Plaintiffs do not dispute that the document is what it purports to be. Indeed, the Plaintiffs state
that “at the end of 2013, [Potente] sought a reduction in the principal amount of his mortgage and
ordered the appraisal of the property. . . The appraisal was completed on December 13, 2013[,
and was] effective December 12, 2013.” (Pl.’s Mem. of Law in Opp. at 13). Instead, the Plaintiffs
argue that:

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[they] did not fully grasp the significance of the appraisal value until mid2014 . . . . There is nothing in the appraisal that would indicate the date when the
plaintiff[s] would have known or should have known that the evaluation of the
property in 2008 was improper. All [they] had was a valuation as of the end of
2013 after the real estate market had suffered from a broad devaluation of property
values caused by the Great Recession and the Mortgage Foreclosure Meltdown.
(Id.).
“When determining the sufficiency of plaintiff[’s] claim for Rule 12(b)(6) purposes,
consideration is limited to the factual allegations in [the] complaint, documents attached to the
complaint as an exhibit or incorporated in it by reference, matters of which judicial notice may be
taken, or documents either in plaintiff[’s] possession or of which plaintiff[ ] had knowledge and
relied in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
Therefore, when a plaintiff chooses not to attach to the complaint or incorporate by reference a
document upon which she relies and which is integral to the complaint, the court may nevertheless
take that document into consideration in deciding a defendant’s motion to dismiss, without
converting the motion into one for summary judgment. Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 47–48 (2d Cir. 1991).
However, when a party submits additional evidence to the Court in connection with a
motion to dismiss, beyond the scope of those allowed under Brass and Cortec, “a district court
must either ‘exclude the additional material and decide the motion on the complaint alone’ or
‘convert the motion to one for summary judgment under Fed. R .Civ. P. 56 and afford all parties
the opportunity to present supporting material.’” Friedl v. City of N.Y., 210 F.3d 79, 83 (2d Cir.
2000) (quoting Fonte v. Bd. of Mgrs. of Cont’l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988));
see also Fed. R. Civ. P. 12(b); 5C Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1366.

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Here, the Court finds that the Plaintiffs possessed the appraisal, and either relied upon or
should have relied upon the appraisal in bringing suit. The Court uses the phrase “should have
relied,” because, as discussed below, the December 2013 appraisal put the Plaintiffs on notice as
to the Defendant’s alleged fraud. That is, the Plaintiffs “discovered” the alleged fraud no later
than December 2013.
Accordingly, the Court will consider the December 2013 appraisal without converting the
motion into one for summary judgment.
C. As to the Plaintiffs’ Claims
1. Fraud in the Factum
a. The Applicable Law
“Fraud in the factum occurs when the maker of the note is tricked into believing that which
he is signing is something other than a promissory or obligatory note. . . . [It] occurs in those rare
cases where the misrepresentation is regarded as going to the very character of the proposed
contract itself, as when one party induces the other to sign a document by falsely stating that it has
no legal effect.” Revak v. SEC Realty Corp., 18 F.3d 81, 91 (2d Cir. 1994) (internal citations,
quotation marks, and alterations omitted).
Relevant here, “[b]y contrast, fraud in the inducement consists of misrepresentations that
cause the maker of the note to enter the transaction.” Id. (internal citations and quotation marks
omitted).
Under the New York C.P.L.R., a plaintiff must bring a claim for fraud within six years
from the date of the alleged fraud, or two years from the time the plaintiff could have discovered
the fraud with reasonable diligence. N.Y. C.P.L.R. § 213(8); see also id. at § 203(g) (“[T]he time
within which an action must be commenced is computed from the time when facts were discovered

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or from the time when facts could with reasonable diligence have been discovered, or from either
of such times, the action must be commenced within two years after such actual or imputed
discovery or within the period otherwise provided, computed from the time the cause of action
accrued, whichever is longer.”); Gonzales v. Nat'l Westminster Bank PLC, 847 F. Supp. 2d 567,
570 (S.D.N.Y. 2012) (“Under New York law, an action based on fraud must be brought within six
years of the commission of the alleged fraud, or two years from when a plaintiff was aware (had
specific notice) or should have been aware of enough facts such that they could have discovered
the fraud with reasonable diligence (had ‘inquiry notice’). This is known as the ‘discovery rule.’”
(citing N.Y. C.P.L.R. §§ 213(8), 203(g)).
However, claims for fraud in the factum are not subject to N.Y. C.P.L.R. § 213(8). See
Faison v. Lewis, 25 N.Y.3d 220, 225–231, 32 N.E.3d 400 (holding that contracts that are void ab
initio, such as those where fraud in the factum is shown, are not subject to the statute of
limitations), reargument denied, 26 N.Y.3d 946, 38 N.E.3d 806 (N.Y. 2015).
b. Application to the Facts
It is clear that the Plaintiffs have attempted to circumvent the statute of limitations by
pleading that this is an instance of fraud in the factum rather than one of fraud in the inducement.
It is similarly clear that the Plaintiffs cannot sustain a cause of action for fraud in the factum.
The Plaintiffs do not dispute that they knew that they were signing a promissory note. (See
Compl. ¶ 21 (“On April 18, 2008, . . . [the] Plaintiff executed a promissory note with
CITIBANK.”)). The Plaintiffs do not allege that the Defendant misrepresented “the very character
of the proposed contract itself,” or that it induced the Plaintiffs “to sign a document by falsely
stating that it has no legal effect.” Revak, 18 F.3d at 91; see also id. (“[P]laintiffs nevertheless
were signing just what they thought they were signing: a note and a deed. Therefore, the fraud

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claim against the Banks, as holders in due course, was properly dismissed.” (internal citations and
quotation marks omitted)); Torres v. Major Auto. Grp., No. 13-CV-0687 NGG CLP, 2014 WL
4802985, at *6 (E.D.N.Y. Sept. 25, 2014) (“Fraud in the factum occurs when the maker of a note
is tricked into believing that which he is signing is something other than a promissory or obligatory
note.” (internal citations and alterations omitted)); Provident Bank v. Cmty. Home Mortg. Corp.,
498 F. Supp. 2d 558, 574 (E.D.N.Y. 2007) (“Where, as here, there is no evidence that the
mortgagors were unaware that they were signing mortgage notes, or were falsely informed as to
the nature of the notes, fraud in the factum cannot be asserted.”); In re Joe Sipala & Son Nursery
Corp., 214 B.R. 281, 288 (Bankr. E.D.N.Y. 1997) (holding that fraud in the factum “is only
available when trickery in the actual issuance of the original check is demonstrated,” such as where
“the maker of the note could not read or understand the English language or did not have a
reasonable opportunity to be informed of what he was signing”) (internal citations omitted);
Dalessio v. Kressler, 6 A.D.3d 57, 61, 773 N.Y.S.2d 434, 436 (2d Dep’t 2004) (“The plaintiff does
not dispute that he knowingly executed a certified check . . . . Accordingly, the nature of [the]
alleged fraud is fraud in the inducement, not fraud in the factum.”).
The true cause of action that the Plaintiffs should have pursued is fraud in the inducement,
as they claim that they relied upon the alleged misrepresentations made by Citibank when they
signed the promissory note. (See Compl. ¶ 10 (“The Plaintiff relied on the honesty of the Lender
and the independent appraisal of Lighthouse Appraisals in agreeing to enter into the loan.”)).
“Although [the Plaintiff] argues . . . that the complaint alleges fraud in the factum, the complaint
actually asserts—both in form and substance—fraud in the inducement. Indeed, [the Plaintiff’s]
allegation[s] . . . are a quintessential example of the latter type of fraud. . . . [T]he factual
allegations in the complaint have nothing to do with that type of claim.” Ipcon Collections LLC

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v. Costco Wholesale Corp., 698 F.3d 58, 62 (2d Cir. 2012) (internal citations and footnote
omitted)).
However, the Plaintiffs appear to have realized that they would be barred by the statute of
limitations from bringing a cause of action for fraud in the inducement. The Plaintiffs did not file
the complaint in this action until more than eight years after the allegedly fraudulent inducement.
Even if the Court accepted the Plaintiffs’ argument that they could not have discovered the
fraudulent activities until much later, the Plaintiffs received an appraisal in December of 2013
which showed that the residence was worth much less than $2.2 million. At that point, they were
on notice, and had “discovered” the alleged fraud, and had to bring an action for fraud before
December of 2015. See, e.g, N.Y. C.P.L.R. §§ 213(8), 203(g) (stating that actions for fraud must
be brought within two years from when a plaintiff was aware of the fraud or had enough facts that
they could have discovered the fraud with reasonable diligence); see also Gonzales, 847 F. Supp.
2d at 570 (same).
The Plaintiffs attempted to circumvent the statute of limitations by pleading a cause of
action for fraud in the factum, but as stated above, that cause of action has not been properly plead
and cannot be sustained.
However, the Plaintiffs would not have been able to plead a cause of action for fraud in the
inducement even if they had filed a cause of action before the statute of limitations had run. This
is because “[t]he long-established rule in New York is that statements concerning the value of real
property are generally not actionable under a theory of fraud or fraudulent inducement.” Newby
v. Bank of Am. Corp., No. 12-CV-614 SJF AKT, 2013 WL 940943, at *4 (E.D.N.Y. Mar. 8, 2013)
(internal citations and quotation marks omitted). There are two reasons for this rule: first,
“representations as to value alone are generally matters of opinion upon which no detrimental

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reliance can occur”; and second, “the doctrine of caveat emptor applies to real estate transactions
such that a buyer has a duty to satisfy himself or herself of the quality of a bargained purchase
price without trusting a seller.” Simms v. Biondo, 816 F. Supp. 814, 819–20 (E.D.N.Y. 1993)
(citations omitted). While courts have found exceptions to the rule of caveat emptor, the Plaintiffs
do not allege any facts that would qualify for those exceptions. See Barkley v. United Homes,
LLC, No. 04–CV–875, 2012 WL 2357295, at *5 (E.D.N.Y. June 20, 2012) (stating that “[c]ourts
have found exceptions to the rule of caveat emptor . . . where sellers concealed facts or induced
buyers to refrain from making independent inquiries into the terms of a real estate deal,” including
where “defendants deliberately steered plaintiffs to other members of the conspiracy in order to
prevent their discovery of the true value of the properties at issue”). Therefore, even if the
Plaintiffs had brought a claim for fraudulent inducement before the statute of limitations had
expired, it would have to be dismissed.
Finally, the Plaintiffs’ claim for fraud in the factum cannot be saved by their allegation that
“the identity of the true lender was not disclosed to the Plaintiffs at the time of the loan
application . . . .” (Compl. ¶ 26). This is a conclusory statement. Furthermore, it does not change
the fact that the Plaintiffs knew that they were signing a promissory note with legal consequences.
The Plaintiffs allege that Citibank was a party to the promissory note, and that Citibank continues
to seek repayment from the Plaintiffs.
Therefore, the Plaintiffs have failed to state a claim for fraud in the factum. Accordingly,
the Defendant’s motion to dismiss that claim pursuant to Rule 12(b)(6) is granted.

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2. Appraisal Fraud
a. The Relevant Law
“There is no independent cause of action for “appraisal fraud.” Newby, 2013 WL 940943,
at *3 n.6. Therefore the Court will review the Plaintiffs’ allegations related to the fraudulent
appraisal under a theory of common law fraud. See id.
To state a claim for fraud in New York, a plaintiff must sufficiently allege: “(1) a
misrepresentation or omission of material fact; (2) which the defendant knew to be false; (3) which
the defendant made with the intention of inducing reliance; (4) upon which the plaintiff reasonably
relied; and (5) which caused injury to the plaintiff.” Wynn v. AC Rochester, 273 F.3d 153, 156 (2d
Cir. 2001).
b. Application to the Plaintiffs’ Claim
As common law fraud is subject to the statute of limitations contained in N.Y. C.P.L.R. §
213(8) and § 203(g), the Court’s analysis of the Plaintiffs’ unalleged claim for fraud in the
inducement applies with equal force here.
Therefore, the Plaintiffs’ cause of action for fraud based upon the Defendant’s appraisal is
barred both by the statute of limitations, as well as by the doctrine of caveat emptor. See Newby,
2013 WL 940943, at *5 (“[A] representation by BOA regarding the value of the property would
have been an opinion, not a representation of fact, and plaintiffs had an independent duty to form
their own opinion. Because plaintiffs have not alleged facts indicating that BOA prevented them
from performing their own investigation into the value of the property, BOA’s [appraisal] opinion
cannot form the basis for a fraud claim.” (citing Weaver v. IndyMac Fed. Bank, FSB, No. 09–CV–
5091, 2011 WL 4526404, at *4 (S.D.N.Y. Sept. 29, 2011) (dismissing claim for appraisal fraud
where the “[p]laintiff fail[ed] to sufficiently state that [d]efendant knew the appraisal was inflated,

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that she intended to defraud [p]laintiff, and that [p]laintiff relied on [d]efendant’s appraisal in
agreeing to the allegedly inflated purchase price”))).
Accordingly, the Defendant’s motion to dismiss the Plaintiff’s claim for appraisal fraud
pursuant to Rule 12(b)(6) is granted.
3. Violation of TILA’s Rescission Provision
a. The Relevant Law
Section 1635 of TILA provides for an obligor with a right of rescission. It states:
Except as otherwise provided in this section, in the case of any consumer credit
transaction . . . in which a security interest, including any such interest arising by
operation of law, is or will be retained or acquired in any property which is used as
the principal dwelling of the person to whom credit is extended, the obligor shall
have the right to rescind the transaction until midnight of the third business day
following the consummation of the transaction or the delivery of the information
and rescission forms required under this section together with a statement
containing the material disclosures required under this subchapter, whichever is
later, by notifying the creditor, in accordance with regulations of the Bureau, of his
intention to do so. The creditor shall clearly and conspicuously disclose, in
accordance with regulations of the Bureau, to any obligor in a transaction subject
to this section the rights of the obligor under this section. The creditor shall also
provide, in accordance with regulations of the Bureau, appropriate forms for the
obligor to exercise his right to rescind any transaction subject to this section.
15 U.S.C. § 1635(a). Relevant here, section 1635 contains a “time limit for [the] exercise of [the]
right.” Id. at § 1635(f). It provides that:
An obligor’s right of rescission shall expire three years after the date of
consummation of the transaction or upon the sale of the property, whichever occurs
first, notwithstanding the fact that the information and forms required under this
section or any other disclosures required under this part have not been delivered to
the obligor, except that if (1) any agency empowered to enforce the provisions of
this subchapter institutes a proceeding to enforce the provisions of this section
within three years after the date of consummation of the transaction, (2) such
agency finds a violation of this section, and (3) the obligor’s right to rescind is based
in whole or in part on any matter involved in such proceeding, then the obligor’s
right of rescission shall expire three years after the date of consummation of the
transaction or upon the earlier sale of the property, or upon the expiration of one
year following the conclusion of the proceeding, or any judicial review or period
for judicial review thereof, whichever is later.
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Id. (emphasis added)
The Supreme Court has explicitly stated that Ҥ 1635(f) completely extinguishes the right
of rescission at the end of the 3-year period.” Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118
S. Ct. 1408, 1409, 140 L. Ed. 2d 566 (1998); see also Jesinoski v. Countrywide Home Loans, Inc.,
-- U.S. --, 135 S. Ct. 790, 791, 190 L. Ed. 2d 650 (2015) (“The Truth in Lending Act gives
borrowers the right to rescind certain loans for up to three years after the transaction is
consummated. . . . [S]o long as the borrower notifies within three years after the transaction is
consummated, his rescission is timely.”).
b. Application to the Facts
The Plaintiffs mailed their notice of rescission eight years after they consummated the
relevant transaction with the Defendant. The Plaintiffs do not present any case law that would
allow this Court to find that their claims under TILA are not barred by the limitations clause
contained in the statute. This Court must, of course, follow Supreme Court precedent.
Therefore, the Plaintiffs did not have a right to rescind the transaction with Citibank, and
they cannot sustain a cause of action for a violation of TILA. Accordingly, the Defendant’s motion
to dismiss the Plaintiffs’ TILA claim pursuant to Rule 12(b)(6) is granted.
4. Injunctive Relief
The Plaintiffs do not respond to the Defendant’s argument that a request for a remedy such
as an injunction is not a cause of action. The Defendant is correct that “injunctions are remedies,
not causes of action,” Miller, 994 F. Supp. 2d at 558, and therefore, the Plaintiffs’ fourth “cause
of action” is dismissed pursuant to Rule 12(b)(6).

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D. As to the Plaintiffs’ Request for Leave to Amend
At the end of their memorandum of law in opposition, the Plaintiffs make a short request
to amend their complaint. (See Mem. of Law in Opp. at 24 (“In the event that any cause of action
is dismissed by the court, the plaintiff asks this court for leave to replead any such dismissed cause
of action.”)). The Plaintiffs do not include a proposed amended complaint, state how any of their
claims could be revived by further amendment, or otherwise set forth a basis for such relief.
Not only is this an improper request for leave to file an amended complaint, Koehler v.
Metro. Transp. Auth., 214 F. Supp. 3d 171, 178 (E.D.N.Y. 2016) (Spatt, J.) (“Courts have held
that a ‘bare request to amend a pleading’ contained in a brief, which does not also attach the
proposed amended pleading, is improper under FED. R. CIV. P. 15.” (collecting cases)), but because
the Court has found that all of the Plaintiffs’ claims are barred by various statutes of limitations,
any amendments would be futile, see, e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122,
126 (2d Cir. 2008) (per curiam) (stating that a court should deny leave to amend “in instances of
futility, undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, or undue prejudice to the nonmoving party.”). Furthermore, as
stated above, even if the Plaintiffs had brought this action within the statutory period, they would
be unable to sustain claims for fraud based on an allegedly inflated appraisal.
Therefore, the Plaintiffs’ request for leave to amend is denied.
III. CONCLUSION
For the reasons stated above, the Defendant’s motion to dismiss the Plaintiffs’ complaint
pursuant to Rule 12(b)(6) is granted in its entirety. The Clerk of the Court is respectfully directed
to close the case.

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SO ORDERED:
Dated: Central Islip, New York
October 17, 2017
____/s/ Arthur D. Spatt_____
ARTHUR D. SPATT
United States District Judge

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