United States District Court, W.D. New York
ANNE MARIE HAAG, on behalf of themselves and all others similarly situated, Plaintiff,
HYUNDAI MOTOR AMERICA, Defendant
For Anne Marie Haag, on behalf of themselves and all others similarly situated, Plaintiff: Elmer R. Keach, III, LEAD ATTORNEY, Law Offices of Elmer Robert Keach III, Amsterdam, NY.
For Hyundai Motor America, Defendant: Timothy J. Graber, LEAD ATTORNEY, Gibson, McAskill & Crosby, Buffalo, NY; Brian P. Crosby, Gibson, McAskill & Crosby, LLP, Buffalo, NY.
DAVID G. LARIMER, United States District Judge.
DECISION AND ORDER
Plaintiff brings this action pursuant to New York State law on behalf of a putative class of car buyers. Plaintiff alleges, inter alia, that defendant Hyundai Motor America breached the terms of an express service warranty. The matter was removed from New York Supreme Court, Monroe County to this Court on September 27, 2012 (Dkt. #1), pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d) et seq. (" CAFA" ). CAFA grants federal courts jurisdiction over proposed class actions where the amount in controversy exceeds five million dollars, there is complete diversity of citizenship between all of the defendants and at least one member of the class, and the class contains at least one hundred potential members. 28 U.S.C. § 1332(d)(2)(A), (d)(5)(B).
Defendant now moves to dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. Proc. 12(b)(6). (Dkt. #11). For the reasons that follow, the motion is granted in part and denied in part.
I. Plaintiff's New York General Business Law § 349 Consumer Protection Claim
N.Y. Gen. Bus. Law § 349 prohibits misleading business practices which harm consumers. Plaintiff claims that her Section 349 claim rests on two different theories, " misrepresentation or omission" -- that is, that Hyundai misrepresented or omitted crucial information concerning brake performance in its communications with customers, and " secret warranty" -- that is, that Hyundai has admitted to some customers that the alleged defect should be covered, but denied this to other customers.
A Section 349 claim requires pleading and proof of three elements: (1) that an act or practice was consumer-oriented; (2) that it was misleading in a material respect; and (3) that the plaintiff was injured thereby. See Maurizio v. Goldsmith, 230 F.3d 518, 522 (2d Cir. 2000). It is well settled that the factual allegations comprising a Section 349 claim cannot be conclusory, nor can they be grounded solely on " information and belief." Bartlett v. Nationwide Mut. Fire Ins. Co., at *10 (W.D.N.Y. 2013). Here, plaintiff's allegations in support of the second element -- that a defect exists, that Hyundai was aware of it, and/or that Hyundai's agents told some customers that the brake problems should be covered by its warranties -- are based only on information and belief.
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