Viania v. Zimmer, Inc. et al

Filing 28

MEMORANDUM OF DECISION & ORDER - For the reasons stated above, the Defendants' 13 motion to dismiss is granted in part, and denied in part. It is granted to the extent that the Plaintiff's claims for breach of express and implied warrant y of fitness for a particular purpose and negligent misrepresentation are dismissed. It is denied to the extent that the Plaintiffs negligence claim survives the motion to dismiss pursuant to Rule 12(b)(6) because it is not, as a matter of law, duplicative of his products liability claims. This case is respectfully referred to Magistrate Judge Anne Y. Shields for discovery. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 11/27/2017. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
JAMES VIANIA,
Plaintiff,

MEMORANDUM OF
DECISION & ORDER
2:17-cv-1641 (ADS)(AYS)

-againstZIMMER, INC., ZIMMER HOLDINGS, INC.
Now Known As Zimmer Biomet Holdings, Inc.
Defendants.
---------------------------------------------------------X
APPEARANCES:
Osborne & Associates Law Firm, P.A.
Co-Counsel for the Plaintiff
433 Plaza Real Blvd.
Suite 271
Boca Raton, FL 33432
By:
Joseph A. Osborne, Esq.,
Andrew Norden, Esq., Of Counsel

McCarthy & Kelly LLP
Co-Counsel for the Plaintiff
52 Duane Street
7th Floor
New York, NY 10007
By:
Gerald T. McCarthy, Esq., Of Counsel
McCarter & English LLP
Co-Counsel for the Defendants
245 Park Avenue
New York, NY 10167
By:
Minji Kim, Esq.,
Zane Christian Riester, Esq., Of Counsel
Faegre Baker Daniels LLP
Co-Counsel for the Defendants
311 S Wacker Drive
Suite 4300
Chicago, IL 60606
By:
Douglas L. Prochnow, Esq.,
Llonyddwch R. Watkins, Esq., Of Counsel
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SPATT, District Judge:
The Plaintiff James Viania (the “Plaintiff”) brought this products liability case against the
Defendants Zimmer, Inc. and Zimmer Holdings, Inc. (collectively, the “Defendants” or “Zimmer”)
for injuries sustained due to an allegedly defective hip prosthesis made by the Defendants that was
implanted into his body.
Presently before the Court is a motion by the Defendants to dismiss four of the seven causes
of action brought by the Plaintiff pursuant to Federal Rule of Civil Procedure (“FED. R. CIV. P.” or
“Rule”) 12(b)(6). For the following reasons, the Defendants’ motion is granted in part, and denied
in part.
I. BACKGROUND
A. The Relevant Facts
The Plaintiff is a resident of Nassau County, New York. The Defendants are foreign
corporations organized under the laws of Delaware, with principal places of business in Indiana.
On March 2, 2010, the Plaintiff was implanted with a Zimmer M/L Taper Hip Prosthesis
(the “prosthesis”). The implant apparently corroded, and caused metal and corrosion byproducts
to leak into the surrounding tissues. The Plaintiff suffered trunnionosis (wear of the femoral headneck interface) and metallosis (the building up of metal debris in the soft tissues of the body). The
complaint does not state when the Plaintiff became aware of these medical problems.
On April 4, 2014, doctors at Winthrop University Hospital surgically removed the
prosthesis. During the operation, doctors discovered a significant amount of dark bloody fluid;
significant and severe reactive synovial debris; devitalized tissue; and significant amounts of
blackened corrosion at the head-neck junction of the femur.

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The Plaintiff alleges that the Defendants were aware of the dangers associated with the
implant, and that they failed to convey these dangers to hospitals, doctors, or patients through
labeling, marketing, or direct communication. To that end, the Plaintiff broadly states that the
marketing and labeling for the implant represented that the implant would conform to
representations, and was safe and effective. Furthermore, the Plaintiff alleges that the Defendants
continually provided reassurances that the implant was safe and effective.
B. The Relevant Procedural History
On March 23, 2017, the Plaintiff commenced this action by filing a complaint. The
complaint alleges seven causes of action sounding in various theories of negligence and fraud:
design defect; failure to warn; manufacturing defect; negligence; negligent misrepresentation;
breach of express warranty; and breach of implied warranty.
On June 26, 2017, before filing an answer, the Defendants filed the instant motion to
dismiss four of the Plaintiff’s causes of action pursuant to Rule 12(b)(6). Specifically, the
Defendants move to dismiss the Plaintiff’s claims for negligence; negligent misrepresentation;
breach of express warranty; and breach of implied warranty. The Defendants contend that the
Plaintiff’s claims for breach of warranty and negligent misrepresentation are barred by the statute
of limitations; that the Plaintiff’s negligence claim is duplicative of his products liability claims;
and that he has failed to plead sufficient facts for the claims.
II. DISCUSSION
A. The 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

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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).
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. The Relevant Law
1. Breach of Express Warranty
To prevail on a claim of breach of express warranty, a plaintiff must show “an ‘affirmation
of fact or promise by the seller, the natural tendency of which was to induce the buyer to purchase’
and that the warranty was relied upon.” Factory Assocs. & Exporters, Inc. v. Lehigh Safety Shoes

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Co. LLC, 382 F. App’x 110, 111–12 (2d Cir. 2010) (quoting Schimmenti v. Ply Gem Indus., Inc.,
156 A.D.2d 658, 549 N.Y.S.2d 152, 154 (N.Y. 1989)).
a. The Statute of Limitations
Under Article 2–725(2) of the N.Y. U.C.C.:
A cause of action accrues when the breach occurs, regardless of the aggrieved
party’s lack of knowledge of the breach. A breach of warranty occurs when tender
of the delivery is made, except that where a warranty explicitly extends to future
performance of the goods and discovery of the breach must await the time of such
performance, the cause of action accrues when the breach is or should have been
discovered.
N.Y. UCC 2–725(2); see also Gelber v. Stryker Corp., 788 F. Supp. 2d 145, 166 (S.D.N.Y. 2011)
(applying N.Y. U.C.C. 2-725-2); Orlando v. Novurania of Am., Inc., 162 F. Supp. 2d 220, 223
(S.D.N.Y. 2001) (same). Therefore, claims for breach of express warranty must be brought within
four years of when the claim accrues, unless the express warranty explicitly extends to future
performance.
2. Breach of Implied Warranty
In order to establish a claim of breach of implied warranty of fitness for a particular
purpose, a plaintiff must show that the defendant “had reason to know, at the time of contracting,
the buyer’s particular purpose for which the goods are required and that the buyer was justifiably
relying upon the seller’s skill and judgment to select and furnish suitable goods, and that the buyer
did in fact rely on that skill.” Factory Assocs., 382 F. App’x at 112 (quoting Saratoga Spa & Bath,
Inc. v. Beeche Sys. Corp., 230 A.D.2d 326, 656 N.Y.S.2d 787, 790 (N.Y. 1997) (internal quotation
marks omitted)).
a. The Statute of Limitations
The statute of limitations for a breach of implied warranty of fitness for a particular purpose
is the same as that for breach of express warranty, except the future performance exception does
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not extend to breaches of implied warranty. See Gelber, 788 F. Supp. at 166–67 (“The [future
performance] exception speaks to express warranties not implied warranties.”) (quoting Orlando,
162 F. Supp. 2d at 224); see also Jackson v. Eddy’s LI RV Ctr., Inc., 845 F. Supp. 2d 523, 532
(E.D.N.Y. 2012) (“There can be no claim of delayed accrual for future performance of any implied
warranty, as such extension must be explicit, and is therefore inconsistent with the concept of an
implied warranty.” (internal citations omitted)).
3. Negligent Misrepresentation
To prevail on a claim of negligent misrepresentation claim under New York law, a plaintiff
must show that:
(1) the defendant had a duty, as a result of a special relationship, to give correct
information; (2) the defendant 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 detriment.
Hydro Inv'rs, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20 (2d Cir. 2000) (internal citations omitted)
a. The Statute of Limitations
“There is some dispute concerning the proper statute of limitations for negligent
misrepresentation.” Fromer v. Yogel, 50 F. Supp. 2d 227, 242 (S.D.N.Y. 1999) (collecting cases
where courts have alternatively applied a six-year or three-year statute of limitations). Some courts
apply the six-year statute of limitations found in N.Y. C.P.L.R. § 213(1), which states that than
“an action for which no limitation is specifically prescribed by law” shall be commenced within
six years. See, e.g., Fromer, 50 F. Supp. 2d at 242 (collecting cases). Many courts have relied on
the six year statute of limitations for fraud contained in N.Y. CP.L.R. § 213(8). Von Hoffmann v.
Prudential Ins. Co. of Am., 202 F. Supp. 2d 252, 263 (S.D.N.Y. 2002) (collecting cases). Other
courts have applied the statute of limitations for personal injury or injury to personal property
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found within N.Y. C.P.L.R. § 214(4)–(5), which is three years. See, e.g., Fromer, 50 F. Supp. 2d
at 242 (collecting cases). Most cases have found that the six year statute of limitations is proper
where the negligent misrepresentation claim mirrors a claim for fraud or “stands in the shadow of
fraud.” Von Hoffmann, 202 F. Supp. 2d at 263; Fromer, 50 F. Supp. 2d at 242–43; Ambassador
Ins. Co. v. Euclid Servs., Inc., No. 80 Civ. 1235, at *4, 1984 WL 341 (S.D.N.Y. May 24, 1984)
(applying § 213(8) because the “essence of the complaint” sounded in fraud even though the
limitations period for negligence under § 214(4) is three years); see also In re Argo
Communications Corp., 134 B.R. 776, 794–96 (Bankr. S.D.N.Y. 1991) (applying § 213(8) where
the claim is closely aligned with a claim for intentional misrepresentation).
“[A] cause of action based on negligent misrepresentation accrues ‘on the date of the
alleged misrepresentation which is relied upon by the plaintiff.’” Von Hoffmann, 202 F. Supp. 2d
at 263 (quoting Fandy Corp. v. Lung–Fong Chen, 262 A.D.2d 352, 691 N.Y.S.2d 572, 573 (2d
Dep’t 1999)).
Furthermore, “[a]bsent allegations of fraud, a claim for negligent misrepresentation . . . is
not subject to any discovery rule.” Marchig v. Christie's Inc., 430 F. App’x 22, 25 (2d Cir. 2011)
(summary order) (citing Von Hoffmann, 202 F. Supp. 2d at 263–64 (applying two years limitations
period running from the alleged discovery of the negligent misrepresentation where the claim was
“based on the same facts as a claim for fraud”); Fandy, 262 A.D.2d 352).
4. Negligence
To bring a claim for negligence under New York law, a plaintiff must show “(1) the
existence of a duty on defendant’s part as to plaintiff; (2) a breach of this duty; and (3) injury to
the plaintiff as a result thereof.” Merges v. Aramark Corp., No. 08-CV-6250, 2012 WL 1113627,

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at *4 (W.D.N.Y. Mar. 30, 2012) (quoting Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333,
441 N.Y.S.2d 644, 424 N.E.2d 531 (N.Y. 1981)).
C. Application to the Facts
1. As to the Plaintiff’s Breach of Warranty Claims
The Defendants contend that the Plaintiff’s claims for breach of warranty are barred by the
statute of limitations, and that he has failed to plead the breach of express warranty claim with
sufficient particularity. In opposition, the Plaintiff argues that it is not clear from the face of the
complaint that the claims are time-barred, and that he has alleged sufficient facts at this stage. The
Court finds that the Plaintiff’s claims for breach of express and implied warranty of fitness for a
particular purpose are barred by the statute of limitations.
As stated above, the statute of limitations for breach of warranty under New York law is
four years. While there is an exception for those claims that allege a breach of an express warranty
for future performance, that exception does not apply to breaches of implied warranty of fitness.
See Gelber, 788 F. Supp. 2d at 166–67 (dismissing plaintiff’s breach of implied warranty claim in
a products liability case where the product was a hip implant, and stating that “the future
performance exception does not apply to plaintiffs’ implied warranty claims” (internal citations
omitted)); Orlando, 162 F. Supp. 2d at 224 (“The [future performance] exception speaks to express
warranties not implied warranties.”); Port Auth. of N.Y. & N.J. v. Allied Corp., 914 F. Supp. 960,
963 (S.D.N.Y. 1995) (“Logically, implied warranties cannot explicitly extend to future
performance.”). Therefore, because the future performance exception does not apply to breaches
of implied warranty, that claim is time-barred as it was brought seven years after the product was
delivered to the Plaintiff.

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The Plaintiff’s breach of express warranty is also time-barred. The claim was brought three
years after the statute of limitations expired, and the Plaintiff does not allege that there was a
warranty for future performance. Indeed, the Plaintiff’s allegations relating to the express warranty
are conclusory. The Plaintiff does not identify how, where, or in what manner the Defendants
expressed such a warranty. The allegations merely state that the Defendants, through advertising,
labeling, and marketing, represented that the implant would conform to representations, and be
safe and effective. First, this is not a warranty of future performance. See Bruno v. Zimmer, Inc.,
No. CV 15-6129, 2016 WL 4507004, at *4 (E.D.N.Y. Aug. 26, 2016) (“[N]othing in the First
Amended Complaint alleges that the future performance exception should apply here. The only
reference to future performance is that Defendants warranted that the hip implant would not fail
during normal usage and would perform for its proper use in the future. ‘A warranty of future
performance is one that guarantees that the product will work for a specified period of time.’”
(quoting Schwatka v. Super Millwork, Inc., 965 N.Y.S.2d 547, 549-50 (2d Dep’t 2013) (internal
citations to the complaint and quotation marks omitted)).
Second, the allegations are insufficient to state a claim upon which relief can be granted
because the Plaintiff does not identify any specific warranty that he relied upon. See Gelber, 788
F. Supp. 2d at 165 (“[T]o the extent plaintiffs[] allege that defendants represented that (4) the
Trident System was safe and effective for its intended purpose and (5) the defendants complied
with the manufacturing specifications set forth in the premarket approval application submitted to
the FDA, these claims fail to state a claim for relief and are therefore dismissed. Plaintiffs have
failed to adequately identify the actionable conduct on the part of the defendants. For example, the
Amended Complaint does not allege where these alleged representations appeared or to whom
they were made. . . . Plaintiffs have failed to set forth facts indicating that any such express

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representation was made to Mrs. Gelber.” (internal citations omitted)); Bruno, 2016 WL 4507004,
at *5 (“Without being able to identify the specific warranty Defendants are alleged to have made,
Plaintiffs cannot establish that they relied on any such warranty, a necessary element of an express
warranty claim.”); Cavanah v. Ford Motor Co., No. 13-CV-4584, 2014 WL 2048571, at *4
(E.D.N.Y. May 19, 2014) (“Where a plaintiff does not identify the terms of the purported warranty
he claims to have relied on, any conclusory allegation for breach of express warranty [must] be
dismissed.” (quoting Goldin v. Smith & Nephew, Inc., No. 12-CV-9217, 2013 WL 1759575, at *6
(S.D.N.Y. Apr. 24, 2013) (internal quotation marks and alterations omitted)); Lake v. Kardjian, 22
Misc.3d 960, 874 N.Y.S.2d 751, 754 (N.Y. Sup. Ct. 2008) (noting that the express warranty claims
failed to give defendants sufficient notice of the claim where, among other reasons, plaintiffs failed
to describe where the representations were made)).
In Gelber, the court dismissed several of the Plaintiff’s breach of express warranty claims
where the plaintiff failed to adequately allege what actions the defendants took, and stated in a
conclusory fashion that the defendants marketed the implant as safe and effective. However, the
Gelber court allowed those claims for breach of express warranty that alleged specific
representations made on packaging material. 788 F. Supp. 2d at 165. Here, the Plaintiff has not
alleged anything of that quality or character here. Instead, the complaint states that the Defendants
labeled and marketed “the quality” of the product, and “represented that [the implant] was safe
and effective . . . .” (Compl. ¶ 113). This is insufficient to state a claim for breach of express
warranty upon which relief can be granted.
The Court need not address reliance, purpose, and intended manner because the complaint
does not allege the existence of any express warranties. See, e.g., Henry v. Rehab Plus Inc., 404

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F. Supp. 2d 435, 444 (E.D.N.Y. 2005) (“[I]ssues of reliance, purpose and intended manner need
not be reached as the record does not reveal the existence of any express warranties.”).
The Plaintiff asks the Court to deny the Defendants’ motion based on a hope that the
Plaintiff will discover the express warranty during discovery. (See Pl.’s Mem. in Opp. to Defs.’
Mot. to Dismiss at 9 (“Because at this stage in the litigation, Plaintiff does not have access to the
documentation distributed by the defendants pertaining to warranties applicable to the Kinectiv
Modular Hip System, Defendants’ motion to dismiss Plaintiff’s Warranty claims as time-barred
must be denied.”)). This is improper. “[D]iscovery is not a fishing expedition for Plaintiffs to
obtain information to try and create claims that do not already exist. In order to properly state a
claim, Plaintiffs need to have adequate information in their possession at the time they file their
complaint . . . .” Bruno, 2016 WL 4507004, at *5. The Plaintiff has failed to allege any specific
express warranty here, and therefore his claim does not withstand Rule 12(b)(6) scrutiny.
Therefore, the Plaintiff’s claims for breach of express and implied warranty of fitness for
a particular purpose are time-barred by the statute of limitations; and the Plaintiff’s claim for
breach of express warranty fails to state a claim upon which relief can be granted. Accordingly,
the Defendants’ motion to dismiss those claims pursuant to Rule 12(b)(6) is granted.
2. As to the Plaintiff’s Negligent Misrepresentation Claim
The Defendants argue that the Plaintiff’s negligent misrepresentation claim is similarly
barred by the statute of limitations, and that the Plaintiff has failed to allege with sufficient
specificity the elements of the claim. In opposition, the Plaintiff states that whether the statute of
limitations began to run when the implant was placed in his body is a question of fact, and that he
has properly plead the claim. The Court finds that the Plaintiff’s claim is barred by the statute of

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limitations, and that the Plaintiff has failed to plead the claim with sufficient facts to withstand
scrutiny under Rule 12(b)(6).
Whether the Court were to apply the six-year or three-year statute of limitations, the
Plaintiff’s claim for negligent misrepresentation is barred. As stated above, causes of action for
negligent misrepresentation accrue when the misrepresentation is made. The latest date on which
the Defendants are alleged to have made any misrepresentations is March 2, 2010, which was
seven years before the Plaintiff filed his complaint.
Also, as stated above, the discovery rule does not apply unless fraud is alleged. Marchig,
430 F. App’x at 25; but see Tenamee v. Schmukler, 438 F. Supp. 2d 438, 446 (S.D.N.Y. 2006)
(“The statute of limitations for negligent misrepresentation or constructive fraud is six-years,
although unlike the case of actual fraud the two year discovery rule does not apply.”). Here, the
Plaintiff does not allege any fraud on the Defendants’ part. However, even if the Court were to
apply the discovery rule, and give the Plaintiff two years from the date of discovery, see, e.g.,
Asbeka Indus. v. Travelers Indem. Co., 831 F. Supp. 74, 80 (E.D.N.Y. 1993) (“[A] claim for fraud
must either be brought within six years from the time that the cause of action accrued or within
two years from the date that the plaintiff actually discovered the fraud or could have discovered
the fraud with due diligence, whichever is longer.” (citing, inter alia, N.Y. C.P.L.R. §§ 203(g),
213(8)), the Plaintiff’s claim would still be time-barred. The latest date the Plaintiff could claim
discovery of the misrepresentation is the date of his surgery to remove the implant, which was
April 4, 2014, almost three years before he filed his complaint. Therefore, the Plaintiff’s claim for
negligent misrepresentation is barred by the statute of limitations.
Furthermore, the Plaintiff does not allege sufficient facts to state a claim upon which relief
can be granted. Similar to the Plaintiff’s breach of express warranty claim, the Plaintiff does not

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identify any specific misrepresentations made by the Defendants, when and where they were made,
or who made them. See, e.g., Bruno, 2016 WL 4507004, at *3 (dismissing the plaintiff’s negligent
and fraudulent misrepresentation claims because, inter alia, “[t]he Amended Complaint lists
various alleged misrepresentations without any indication of who made them, where or when they
were made or in what manner they were communicated”); Fisher v. APP Pharm., LLC, 783 F.
Supp. 2d 424, 432 (S.D.N.Y. 2011) (dismissing the plaintiff’s negligent misrepresentation claim
because “[t]he SAC lack[ed] any allegations regarding which misrepresentations were made to the
Plaintiff or his doctors”).
The Plaintiff broadly states that the implant was marketed and labeled as safe and effective,
and that “[r]eassurances of device safety were made through direct promotional contact by
Defendants’ sales representatives and distributors, through word-of-mouth from Zimmer’s
physician/technical consultants, and/or through industry targeted promotional materials.” (Compl.
¶ 54). These allegations do not rise to the level of specificity required here. The Plaintiff does not
identify any specific labels or marketing materials, or any communications that were made to him,
or even to his doctors.
Additionally, the Plaintiff’s allegations illustrate that any alleged misrepresentations were
made to the Plaintiff’s doctors, and not to the Plaintiff himself. (See Compl. ¶ 40 (“Zimmer
marketed its hip implants, including the Zimmer M/L Taper with Kinectiv® Technology Hip
Implant System, to orthopedic surgeons and hospitals rather than end-user patients.”).
Therefore, the Plaintiff’s negligent misrepresentation claim also fails to allege sufficient
facts for the Court to plausibly find that it can grant relief.
Accordingly, the Defendants’ motion to dismiss the Plaintiff’s negligent misrepresentation
claim pursuant to Rule 12(b)(6) is granted.

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3. As to the Plaintiff’s Negligence Claim
The Defendants contend that the Plaintiff’s negligence claim cannot be sustained because
it is duplicative of his products liability claims. The Plaintiff argues that this is a misstatement of
the law, and that plaintiff are permitted under New York law to bring products liability and
negligence claims together. The Court finds that the Plaintiff’s claims are not duplicative.
“In New York, a plaintiff injured by an allegedly defective product may seek recovery
against the manufacturer on the basis of any one or more of four theories of liability,” including
express or implied contract, negligence, or strict products liability. Voss v. Black & Decker Mfg.
Co., 59 N.Y.2d 102, 106, 450 N.E.2d 204 (N.Y. 1983) (internal citations and quotation marks
omitted) ; see also Monell v. Scooter Store, Ltd., 895 F. Supp. 2d 398, 410 (N.D.N.Y. 2012) (same).
While the Defendants rely upon Monell in support of their contention that the Plaintiff’s
negligence claim is duplicative of his products liability claims, the court in Monell allowed the
Plaintiff’s products liability and negligence claims to go to the jury based on the court’s statement
that “where liability is predicated on a failure to warn, New York views negligence and strict
liability claims as equivalent.” 895 F. Supp. 2d at 416 (internal citations and quotation marks
omitted).
Similarly, the Second Circuit stated in Jarvis v. Ford Motor Co., 283 F.3d 33 (2d Cir.
2002), a case also relied upon by the Defendants, that “neither this Court nor the New York Court
of Appeals has squarely endorsed” the rule that “negligence and strict products liability claims for
design defects are functionally the same and virtually indistinguishable.” Id. at 62. Instead, the
Jarvis court stated that it had “no opinion as to how we might rule if required to decide whether,
under New York law, the negligence cause of action in this case was duplicative of the strict
liability cause of action . . . .” Id. at 63.

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The Defendants provided no case law to support their contention that the Plaintiff’s
negligence claim must be dismissed as redundant. Indeed, as the discussion above illustrates, the
cases cited by the Defendants support the Plaintiff’s argument that the negligence claim should
not be dismissed.
The Defendants advance no further theories in support of their motion to dismiss the
Plaintiff’s negligence claim. Accordingly, the Defendants’ motion to dismiss the Plaintiff’s
negligence claim pursuant to Rule 12(b)(6) is denied.
III. CONCLUSION
For the reasons stated above, the Defendants’ motion to dismiss is granted in part, and
denied in part. It is granted to the extent that the Plaintiff’s claims for breach of express and
implied warranty of fitness for a particular purpose and negligent misrepresentation are dismissed.
It is denied to the extent that the Plaintiff’s negligence claim survives the motion to dismiss
pursuant to Rule 12(b)(6) because it is not, as a matter of law, duplicative of his products liability
claims. This case is respectfully referred to Magistrate Judge Anne Y. Shields for discovery.

It is SO ORDERED:
Dated: Central Islip, New York
November 27, 2017
_______/s/ Arthur D. Spatt_________
ARTHUR D. SPATT
United States District Judge

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