United States District Court, S.D. New York
ANDREW ZACCAGNINO, on behalf of himself and all other similarly situated, Plaintiff,
NISSAN NORTH AMERICA, INC., Defendant.
OPINION & ORDER
LOUIS L. STANTON,
Plaintiff Andrew Zaccagnino brought this putative class action against
defendant Nissan North America, Inc. ("Nissan") for deceptive business
practices, false advertising, and breach of express and implied warranties.
Nissan moves to dismiss the amended class action complaint ("complaint") for
lack of standing and failure to state a claim. For the reasons that follow,
Nissan's motion is granted in part and denied in part. Zaccagnino has standing
to sue and has stated a claim for deceptive business practices. The false
advertising and warranty claims are dismissed for failure to state a claim.
Nissan manufactures and sells Nissan and Infiniti vehicles in the
"Since at least 2012, Nissan was aware of numerous customer
complaints, warranty claims and other data that demonstrated that the OCS in the
Nissan Vehicles was defective." Am. Class Action Compl. ("Compl.") ¶ 3, Dkt. No.
21. The OCS, which stands for occupant classification system, is a system of
sensors that "detect when children sit in the front passenger seat and either
deactivate the air bag or deploy the air bag with less force." Id . ¶
20. If the OCS malfunctions, the passenger airbag may improperly deploy when a
child is sitting in the passenger seat or fail to deploy despite the presence of
an adult passenger. A dashboard light indicates when the OCS has deactivated the
airbag because of a child passenger.
"Nissan attempted to conduct a limited recall of less than 83, 000
vehicles in February 2014. It quickly became clear that the limited recall did
not fix the defect and the consumer complaints and warranty claims continued
throughout 2013." Id . ¶ 3.
In August 2013, Zaccagnino bought a 2013 Nissan Altima from a Nissan
dealership. The car was not subject to the February 2013 recall.
Plaintiff saw advertisements for Nissan vehicles on television, in
magazines, on billboards, in brochures and on the internet before he
purchased his Altima. Before he purchased the 2013 Altima, he recalls that
safety and quality were consistent themes across the advertisements he saw.
These representations about safety and quality influenced Plaintiffs
decision to purchase the 2013 Altima.
Id. ¶ 15.
In March 2014, Nissan expanded the recall to almost one million cars,
including Zaccagnino's Altima. He learned of the recall in April 2014 and had
his car inspected. "While the vehicle was in the garage being inspected,
Plaintiff and a mechanic observed that the passenger air-bag' light indicated
that the air bag was in the off' position even though an adult male was sitting
in the front passenger seat." Id . ¶ 76. He then took his car to the
Nissan dealership, which performed the recall repair.
However, because of "numerous reports that the March 2014 Recall did
not adequately repair the OCS Defect, " Zaccagnino "has no confidence that the
defect in his vehicle has been repaired." Id . ¶ 78.
Zaccagnino claims that Nissan was aware the 2013 recall had not solved
the OCS defect and the defect was present in many vehicles that were not covered
by the 2013 recall. He states that if he had known about the OCS defect he would
have paid less for his car. Accordingly, he claims that Nissan engaged in
deceptive business practices and false advertising by not disclosing that his
car might be defective and continuing to advertise it as a safe, quality
Zaccagnino also claims that Nissan breached the express and implied
warranties by selling him a car with a defective OCS and failing to repair it.
Nissan moves to dismiss the complaint for lack of standing and failure
to state a claim. See Fed.R.Civ.P. 12 (b) (1), (6).
Zaccagnino alleges that he paid more for his car than he would have if
Nissan had disclosed the OCS defect and that Nissan failed to repair the car in
accordance with the warranties, leaving him with a car diminished in value.
Among other relief, he seeks an award of damages to ...