The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This matter is before the Court on motions for summary judgment filed by Defendants Patrick Pontiac, Inc., and National Auto Care Corporation, seeking dismissal of the Truth in Lending Act ("TILA") and New York State General Business Law Section 349 ("Section 349") claims against them. For the reasons stated below, the Court grants Defendants' motions (Docket Nos. 19 & 21) for summary judgment and awards costs, but not attorney's fees.
Plaintiff, Brian M. Zamito, purchased a used 2000 Pontiac Grand Prix SE from Patrick Pontiac, Inc. ("Patrick Pontiac") on October 13, 2003. At the same time, Zamito purchased an extended warranty service contract from National Auto Care Corporation ("National Auto"). Further, on October 13, 2003, in connection with his acquisition of the Grand Prix, Zamito signed a retail sales installment contract, a Truth in Lending disclosure statement, and a purchase agreement. Zamito financed his purchase of the vehicle and extended warranty contract through Canandaigua National Bank & Trust Company, N.A. A portion of the amount charged for the extended warranty contract was retained by Patrick Pontiac. The retail installment contract Zamito signed contained an itemization of the amount financed with an indication, in box number seven, that National Auto would be paid $1,657.00. An asterisk next to that entry refers to a footnote underneath the box and that footnote states, "You may be retaining a portion of these amounts." At the top of the retail installment contract, the term "you" is defined to mean "the Seller or, after the Seller transfers its rights under this Contract, anyone having those rights."
Shortly after October 13, 2003, Zamito received the extended warranty contract in the mail. Pursuant to its terms, Zamito had 20 days to review the contract and cancel it for a full refund if he chose to do so. The contract contained a "Minimum Services Required" provision for pre-owned or used vehicles and requires, inter alia, that the owner "change transmission fluid every 12 months or 12,000 miles on used vehicles."
Zamito had his vehicle repaired at Patrick Pontiac under the terms of the contract on several occasions during the following three years. On January 19, 2006, Zamito brought his car to Patrick Pontiac for service because he was experiencing noise and a shudder in the car's transmission. A service representative at Patrick Pontiac contacted National Auto to obtain authorization for a repair and was told the repair would not be covered under the extended warranty, since there was no proof that Zamito had changed the transmission fluid in the car every 12 months or 12,000 miles. The service representative relayed this information to Zamito. Zamito responded by taking his vehicle elsewhere for repairs. Specifically, he had it fixed at Empire Transmission and Auto Service, Inc., at a cost of $1,795.06.
On January 18, 2007, Zamito commenced a lawsuit against Defendants in New York State Supreme Court, Monroe County. Subsequently, Defendant National Auto removed the action to this Court.
Zamito's complaint alleges four causes of action: (1) a first cause of action against Defendants Patrick Pontiac and National Auto, in which Zamito alleges that Defendants issued a disclosure statement that violated the requirements of the TILA and regulations promulgated thereunder, specifically 15 U.S.C. § 1638(E)*fn2 and regulation*fn3 226.17(E); (2) a second cause of action against Defendants Patrick Pontiac and National Auto, in which Zamito alleges that Defendants violated section 349 of the General Business Law of the state of New York by charging automobile buyers more than they expended or intended to expend on behalf of Zamito and by such deceptive acts defrauded him; (3) a third cause of action against Canandaigua Bank, in which Zamito alleges that this defendant, as a holder of the installment contract and extended warranty contract, entered into by Zamito, is liable to the same extent as Defendant Patrick Pontiac for violating the provisions of the Truth in Lending Act and section 349 of the New York state General business Law;*fn4 and finally, (4) a fourth cause of action against Defendants Patrick Pontiac and National Auto, in which Zamito alleges that the contract requirement, that the transmission fluid be changed every 12 months or 12,000 miles, is unconscionable, is a deceptive practice, and is an unreasonable trap, demonstrating in bad faith on the part of National Auto and its agent Patrick Pontiac, all in violation of section 349 of the New York state General business Law. Plaintiff seeks class-action certification pursuant to Federal Rule of Civil Procedure 23.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 Moore's Federal Practice, § 56.11[a] (Matthew Bender 3d ed.). W here the non-moving party will bear the burden of proof at trial, "the burden on the moving party may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once that burden has been met, the burden then shifts to the non-moving party to demonstrate that, as to a material fact, a genuine issue exists. Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary ...