The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge
Plaintiff Bristol Village, Inc. commenced this putative class action alleging, among other things, that Defendant Louisiana-Pacific Corporation*fn1 breached express and implied warranties with respect to its TrimBoard product. Presently before this Court is Defendant's Motion to Dismiss all causes of action except Plaintiff's breach of express warranty claim. The Court has reviewed the submissions and finds oral argument unnecessary. For the reasons that follow, Defendant's motion is granted in part and denied in part.
Plaintiff is an assisted living facility located in Clarence Center, New York. (Am. Compl. ¶ 9.) TrimBoard, a composite-wood trim product, was installed in Plaintiff's facility in November 2003. (Id. ¶¶ 9, 26, 64-65.) TrimBoard is used: as fascia, a trim band running horizontally and situated vertically under the roof edge or forming the outer surface of a cornice; soffit, applied near the roof line of a structure; corner board, which functions as trim on the corners of a building; bandboard, which functions as a trim divider between floor levels on the exterior of a wall; and window trim and door trim/casing. Trim[B]oard is also marketed for use in other typical exterior applications.
(Id. ¶ 26.) Plaintiff alleges that Defendant marketed TrimBoard "as a low-cost wood trim alternative that is actually superior to real wood trim." (Id. ¶¶ 28-29.)
Defendant warranted TrimBoard "exclusive of finish, against delamination, checking, splitting, cracking and chipping of the basic substrate for a period of ten years from the date of installation under normal conditions of use and exposure," and upon any failure within that time period, Defendant would "compensate the owner for repair and replacement of the affected trim no more than twice the original purchase price." (Am. Compl. Ex. A.) TrimBoard also came with a five-year warranty on its primer "against peeling, blistering, or cracking" from the date of installation. (Id.) The warranty included the following notice: "THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE." (Id. (emphasis in original))
Plaintiff commenced the instant action in this Court in 2012 against Defendant and ABT Building Products Corporation, alleging that the TrimBoard on Plaintiff's facility "is now rotting, swelling, cracking, and peeling." (Am. Compl. ¶ 67.)
In particular, the fascia trim on Plaintiff's structure has exhibited significant swelling at butted joints. The ends of boards in these types of installations are site-cut, but are not 'exposed' such that they require sealing and priming -- a fact that should be stated in installation instructions, but was not stated in Defendant's installation instructions. All fascia installed on Plaintiff's structure with butted joints has exhibited swelling. Fascia installed on Plaintiff's structure at butted-joints is also delaminating. (Id. ¶ 68.). Further, the TrimBoard installed around Plaintiff's windows and as other trim has also exhibited damage. (Id. ¶¶ 69-70.) Plaintiff alleges that, as a result of the defective TrimBoard, the structure of Plaintiff's facility sustained significant water damage and parts thereof are rotting. (Id. ¶ 73.) Accordingly, Plaintiff asserted causes of action in its initial Complaint for: (1) breach of express warranty; (2) breach of implied warranty of merchantability; (3) negligence; (4) unjust enrichment; (5) violation of New York's Deceptive Trade Practices Law, General Business Law § 349 (a); (6) punitive damages; and (7) declaratory and injunctive relief. (Compl. ¶¶ 84-140, Docket No. 1.)
In lieu of answering, Defendant moved to dismiss the Complaint in April 2012. (Docket Nos. 12, 17 (motion and amended motion).) Plaintiff filed an Amended Complaint on May 24, 2012. (Docket No. 24.) The Amended Complaint eliminates ABT Building Products Corporation as a defendant, in recognition of the fact that this entity is a wholly owned subsidiary of and indistinct from Defendant Louisiana-Pacific Corporation. (See Pl's Mem of Law in Opp'n at 2.) No separate cause of action for punitive damages appears in the Amended Complaint, although Plaintiff still seeks such relief as a part of its requested damages. Defendant therafter moved to dismiss all causes of action in the Amended Complaint except for the breach of express warranty claim.*fn2 (Docket No. 25.)
In considering a motion to dismiss for failure to state a claim pursuant to Rule 12 (b)(6), a court must accept all factual allegations in the complaint as true and make all reasonable inferences in a plaintiffs' favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). In order to survive such a motion, a complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); ATSI Commc'ns, Inc., 493 F.3d at 98. This assumption of truth applies only to factual allegations and is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
Further, where a plaintiff timely amends his complaint as a matter of course while a motion to dismiss is pending, see Fed. R. Civ. P. 15 (a)(1)(B), a court may either deny the motion as moot or consider it in light of the amended pleading. Roller Bearing Co. of America, Inc. v. American Software, Inc., 570 F. Supp. 2d 376, 384 (D.Conn. 2008). Here, however, Plaintiff's Amended Complaint was filed more than 21 days after Defendant's Amended Motion to Dismiss was filed. Fed. R. Civ. P. 15 (a)(1)(B)(a party may file an amended pleading as of right within 21 days after service of either a responsive pleading or service of a motion under Rule 12 (b), (e), or (f)); see generally United States ex rel. Mathews v. HealthSouth Corp., 332 F.3d 293, 296 (5th Cir. 2003)("failure to obtain leave results in an amended [pleading] having no legal effect"); Gaumont v. Warner Bros. Pictures, 2 F.R.D. 45, 46 (S.D.N.Y. 1941)(same); but see Little v. Nat'l Broad. Co., Inc., 210 F.Supp.2d 330, 372 (S.D.N.Y. 2002)(some courts have considered untimely amended pleadings if leave would have been granted and in the absence of prejudice to any party). Nonetheless, Defendant has also moved to dismiss this Amended Complaint and the parties have fully briefed the issues raised therein. This Court will therefore construe Plaintiff's filing as a request for leave to file an Amended Complaint, and grant that request. Defendant's Amended Motion to Dismiss the Complaint is dismissed as moot. (Docket No. 17.) Accordingly, the Court will address the merits of Defendant's Motion to Dismiss the Amended Complaint. (See Docket No. 25.)
A. Breach of Implied Warranty
Defendant contends that the second cause of action must be dismissed because:
(1) Plaintiff lacked privity with Defendant, a necessary element of a breach of implied warranty claim; (2) any implied warranty was expressly disclaimed by Plaintiff; and (3) this claim is barred by the statute of limitations.
Initially, Defendant is correct that, under New York law,*fn3
"[a] claim based upon a breach of an implied warranty
requires a showing of privity between the manufacturer and the
plaintiff when there is no claim for personal injuries." Adirondack
Combustion Tech., Inc. v. Unicontrol, Inc., 17 A.D.3d 825, 827, 793
N.Y.S.2d 576, 579 (N.Y.A.D. 3d Dep't. 2005) (citing Jaffee Assoc. v.
Bilsco Auto Serv., 58 N.Y.2d 993, 995, 448 N.E.2d 792 (1983)); see
Arthur Glick Leasing,Inc. v. William J. Petzold, Inc., 51 A.D.3d 1114,
1117, 858 N.Y.S.2d 405 (N.Y.A.D. 3d Dep't 2008), lv denied 11 N.Y.3d
708 (2008) (remote
purchaser barred as a matter of law from claiming economic damages due
to alleged breach of implied warranties); Cereo v. Takigawa Kogyo Co.,
Ltd., 252 A.D.2d 963, 964, 676 N.Y.S.2d 364, 365-66 (N.Y.A.D. 4th
Dep't 1998) (privity not required in a personal injury action for
breach of express or implied warranty ) (citing U.C.C. § 2-318). Thus,
to the extent that Plaintiff contends that it is a third-party
beneficiary to an implied warranty, privity is ...