Pyskaty v. Wide World of Cars, LLC, 15 Civ. 1600 (JCM)
| Decision Date | 23 February 2016 |
| Docket Number | 15 Civ. 1600 (JCM) |
| Parties | MAYA PYSKATY, Plaintiff, v. WIDE WORLD OF CARS, LLC d/b/a WIDE WORLD BMW; BMW BANK OF NORTH AMERICA; Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Maya Pyskaty ("Plaintiff") commenced this action pursuant to the Magnuson-Moss Warranty—Federal Trade Commission Improvement Act ("MMWA"), 15 U.S.C. §§ 2301 et seq. (), New York General Business Law ("N.Y. G.B.L.") § 349 (), N.Y. G.B.L. § 350 (unlawful false advertising), New York Uniform Commercial Code ("N.Y. U.C.C.") § 2-313 (), N.Y. U.C.C. § 2-314 (), and allegations of common-law fraud.1
Presently before this Court is a motion by defendant Wide World of Cars, LLC ("Wide World") to dismiss Plaintiff's amended complaint ("Amended Complaint" or "Am. Compl."2) against Wide World and defendant BMW Bank of North America ("BMW Bank") (collectively, "Defendants") for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure12(b)(1). (Docket No. 16).3 Plaintiff opposes the motion. (Docket Nos. 30, 31). For the reasons set forth below, Wide World's motion to dismiss is granted and the Amended Complaint is dismissed in its entirety.4
This case arises out of a dispute between Plaintiff and Wide World, "an auto dealership in the business of selling new and used vehicles." (Am. Compl. ¶ 10). BMW Bank is included as a defendant because of its alleged status as an assignee of a contract executed by Plaintiff and Wide World. (Id. ¶¶ 11, 12).
The Court assumes the parties' familiarity with the facts in this case. Accordingly, the Court recites only those facts necessary to resolve the present motion.
On October 31, 2013, Plaintiff and her husband ("Mr. Pyskaty") visited Wide World and discussed the purchase of a certified pre-owned BMW for Plaintiff's personal use. (Am. Compl. ¶ 13). Plaintiff and Mr. Pyskaty saw a 2010 BMW 750LXI ("the Vehicle"), which was displayed as a certified pre-owned ("CPO") automobile. (Id. ¶ 20). Plaintiff asked a salesperson about the history of the Vehicle and specifically asked if the Vehicle had been in an accident. (Id. ¶ 21). The salesperson "responded that the Vehicle had no accident history, was 'perfect' andhad a 'clean' Carfax." (Id. ¶ 22). The salesperson also confirmed that the Vehicle had passed the inspection requirements for BMW CPO vehicles. (Id. ¶ 25). Plaintiff thereafter agreed to purchase the Vehicle for $51,195. (Id. ¶ 27).
Within the first week of purchase, Plaintiff "noticed that the Vehicle ran rough and vibrated while driving." (Am. Compl. ¶ 29). Plaintiff later noticed that the Vehicle experienced a number of additional issues: lack of power on acceleration, (id. ¶ 42); malfunctioning door locks, (id. ¶ 50); engine sluggishness while in reverse, (id. ¶ 59); lack of power or hesitation on acceleration, (id. ¶ 81); and intermittent loss of power steering, (id. ¶ 83). Plaintiff visited service centers on various occasions in November 2013, January 2014, April 2014, and May 2014, (id. ¶¶ 35, 42-43, 45, 53, 59), and she paid for several repairs in an attempt to fix the Vehicle, (see, e.g., id. ¶¶ 43-44, 48, 54, 57, 60-62).
In or about June 2014, Plaintiff reached out to BMW of North America ("BMW-NA") to request its assistance in returning the Vehicle for a refund, (Am. Compl. ¶ 64), but BMW-NA told her she would have to speak to Wide World, (id. ¶ 65). Plaintiff returned to Wide World and "indicated her desire to revoke acceptance of the vehicle and arrange for return, rescission, and refund." (Id. ¶ 74). Wide World responded that it would only accept the Vehicle as a trade-in and that it would value the Vehicle at $35,000 for the purposes of trade-in. (Id. ¶¶ 75, 76). Plaintiff declined Wide World's offer. (Id. ¶ 77). At some point Plaintiff became concerned that the Vehicle had been in a prior accident and, on June 12, 2014, Plaintiff obtained an Autocheck report on the Vehicle which indicated that the Vehicle had in fact sustained a rear impact collision on August 24, 2012. (Id. ¶¶ 78-80). Plaintiff took the Vehicle off the road during the summer of 2014, and she has kept it garaged since that time. (Id. ¶¶ 83-84).
Plaintiff alleges that the Vehicle has a number of traits that would inform a dealership, but not a layperson, that the Vehicle had been in a major accident. (Am. Compl. ¶ 86). Therefore, according to Plaintiff, Wide World knew that the service history and Carfax report it gave her were "materially inaccurate, incomplete and false at the time provided." (Id. ¶ 90). Plaintiff also alleges that Defendants created a "written warranty under their advertised CPO program," (id. ¶ 120), and that Defendants breached this warranty because the Vehicle "suffers from significant defects in its condition and . . . was not properly serviced and/or repaired in compliance with the BMW CPO requirements prior to sale," (id. ¶ 121).
Plaintiff asserts the following claims in the Amended Complaint: (1) breach of implied warranty of merchantability under the MMWA ("Count I"); (2) breach of express written warranty under the MMWA ("Count II"); (3) breach of express warranty under N.Y. U.C.C. § 2-313 ("Count III"); (4) breach of implied warranty of merchantability under N.Y. U.C.C. § 2-314 ("Count IV"); (5) common-law fraud ("Count V"); (6) deceptive acts and practices under N.Y. G.B.L. § 349 ("Count VI"); and (7) unlawful false advertising under N.Y. G.B.L. § 350 ("Count VII").
In connection with these claims, Plaintiff seeks to recover the following damages: (i) actual damages on all counts, (Am. Compl. ¶¶ 117, 124, 133, 137, 145, 157, 165); (ii) up to $1,000 in treble damages on Count VI, (id. ¶ 157); (iii) up to $10,000 in treble damages on Count VII, (id. ¶ 165): (iv) punitive damages in an unspecified amount on Counts III, IV, VI and VII, (id. at 23 ¶¶ (c), (d); ¶¶ 157, 165); (v) punitive damages of "not less than three times her actual damages" on Count V, (id. ¶ 146): (vi) reasonable attorneys' fees, costs, and expenses onCounts I, II, III and IV, (id. ¶¶ 117, 124, 133, 137); (vii) costs and expenses on Count V, (id. at 23 ¶ (e)); and (viii) reasonable attorneys' fees and costs on Counts VI and VII, (id. ¶¶ 157, 165).
As to actual damages, Plaintiff alleges the following: (i) a diminished value of the Vehicle of approximately $30,717 at the time of sale and approximately $36,330 at the time of suit, (see Am. Compl. ¶¶ 94-95, Opp.5 at 6); (ii) "approximately $3,000" in repairs, (Am. Compl. ¶ 96); (iii) pain and suffering in an unspecified amount, (id. ¶ 97); (iv) approximately $8,240 for payments on the Vehicle made during the eight-month period prior to suit when the Vehicle was "undriveable" and kept in a garage, (Am. Compl. ¶¶ 83, 84, 98; Opp. at 6-7); and (v) arguably,6 an unspecified amount of "insurance expenses" for the same eight-month period, (Opp. at 7).
As to her breach of warranty claims (Counts I, II, III and IV), Plaintiff states that she "is entitled to and reserves the right, at her discretion, to elect cancellation and rescission of the loan in lieu of those actual damages attributable to the vehicle's diminished value." (Am. Compl. ¶¶ 118, 125, 134, 138).
Currently before the Court is Wide World's motion to dismiss the Amended Complaint for lack of subject matter jurisdiction. Wide World argues that this Court lacks jurisdiction because Plaintiff's claims do not meet the MMWA's $50,000 amount-in-controversy threshold.
Wide World puts forth several arguments in support of its motion. First, Wide World claims that Plaintiff is not entitled to a refund under the MMWA because the only warranties atissue here are limited warranties. (Motion7 at 38). Second, Wide World asserts that Plaintiff's actual damages amount to either $28,022 or $30,717, depending on the figures utilized. (Id. at 4). Third, Wide World argues that Plaintiff's "lemon law"9 claim fails because Plaintiff failed to give Wide World a reasonable opportunity to repair the Vehicle's defects. (Id. at 5). Fourth, Wide World argues that a statutory warranty given under New York's Used Car Lemon Law, N.Y. G.B.L, § 198-a, does not constitute a "written warranty" under the MMWA. (Id.). Fifth, Wide World states that Counts I and IV fail because Wide World did not make or adopt any written warranty. (Id. at 5-6). Sixth, Wide World claims that Plaintiff's surviving causes of action fail to meet the MMWA's $50,000 threshold because Plaintiff cannot include either attorneys' fees or punitive damages in the computation of damages as to those causes of action. (Id. at 6).
Plaintiff opposes the motion. First, Plaintiff argues that she can include damages for state law claims when computing the MMWA's $50,000 requirement. (Opp.10 at 10-13). Second, Plaintiff argues that she is entitled to revoke acceptance of the Vehicle and that her revocation amount exceeds $50,000. (Id. at 14-15). Third, Plaintiff argues that the MMWA claims alone exceed $50,000 because she can include punitive damages as to her MMWA claims. (Id. at 16-17). Fourth, Plaintiff claims that Wide World's attempt to disclaim any implied warranties fails because multiple written warranties attach to this transaction. (Id. at 17-21). Fifth, Plaintiffwrites that she did not sue under New York's Used Car Lemon Law, that the MMWA requires an opportunity to "cure," not an opportunity to "repair," and that Wide World had plenty of opportunities to address the issues with the Vehicle. (Id. at 21-22). Sixth, Plaintiff argues that her warranty claims should be considered in determining jurisdiction because Wide World's disclaimer of warranties is not effective under New York law and, in any event, does not disclaim anything of...
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