| Loiodice v BMW of N. Am., LLC |
| 2015 NY Slip Op 01244 [125 AD3d 723] |
| February 11, 2015 |
| Appellate Division, Second Department |
[*1]
| Cindy Loiodice, Respondent, v BMW of NorthAmerica, LLC, Appellant. |
Biedermann Hoenig Semprevivo, P.C., New York, N.Y. (Phillip C. Semprevivo andAnthony Presta of counsel), for appellant.
Kimmel & Silverman, P.C., New York, N.Y. (Jacqueline C. Herritt of counsel),for respondent.
In an action, inter alia, to recover damages for breach of written and impliedwarranties pursuant to the Magnuson-Moss Warranty-Federal Trade CommissionImprovement Act (15 USC § 2301 et seq.), the defendant appeals,as limited by its notice of appeal and brief, from so much of an order of the SupremeCourt, Nassau County (Phelan, J.), entered February 7, 2013, as denied those branches ofits motion which were pursuant to CPLR 3211 (a) to dismiss the second and third causesof action.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the defendant's motion which was pursuant to CPLR 3211 (a) todismiss the second cause of action, and substituting therefor a provision granting thatbranch of the motion; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements.
On November 10, 2007, the plaintiff leased and accepted delivery of a new 2008BMW 328xi, manufactured by the defendant BMW of North America, LLC (hereinafterBMW). The vehicle came with a "BMW 3 Series Service and Warranty Guide" settingforth "limited warranties," including the "New Vehicle Limited Warranty," effective forfour years or 50,000 miles, covering the cost of all parts and labor necessary to repair orreplace any defective part on the vehicle, except the tires.
In October 2010, the plaintiff purchased the vehicle. On several occasions over thenext year, the plaintiff took the vehicle to authorized dealers for repairs on certain defectsand nonconformities, but the problems persisted.
The plaintiff commenced the instant action against BMW on November 22, 2011.The second cause of action alleged a breach of written and implied warranties under theMagnuson-Moss Warranty-Federal Trade Commission Improvement Act (15 USC§ 2301 et seq.; hereinafter the Warranty Act), and the third cause ofaction alleged a violation of General Business Law § 349.
BMW moved pursuant to CPLR 3211 (a), inter alia, to dismiss the second and third[*2]causes of action, claiming that they were time-barred.The Supreme Court denied those branches of BMW's motion.
In moving to dismiss a cause of action as barred by the applicable statute oflimitations, a defendant bears the initial burden of demonstrating, prima facie, that thetime within which to commence the action has expired (see Jalayer v Stigliano, 94AD3d 702, 703 [2012]; Fleetwood Agency, Inc. v Verde Elec. Corp., 85 AD3d 850[2011]; Rakusin v Miano,84 AD3d 1051 [2011]). The burden then shifts to the plaintiff to raise a question offact as to whether the statute of limitations was tolled or was otherwise inapplicable, orwhether the action was actually commenced within the applicable limitations period(see Jalayer v Stigliano, 94 AD3d at 703; Williams v New York City Health & Hosps. Corp., 84AD3d 1358 [2011]). To make a prima facie showing, the defendant must establish,inter alia, when the plaintiff's cause of action accrued (see Swift v New York Med.Coll., 25 AD3d 686, 687 [2006]).
Claims brought under the Warranty Act are covered by the four-year statute oflimitations prescribed by UCC 2-725 (see Statler v Dell, Inc., 775 F Supp 2d 474,481 [ED NY 2011]). That statute specifically defines the date of accrual to be "when thebreach occurs, regardless of the aggrieved party's lack of knowledge of the breach. Abreach of warranty occurs when tender of delivery is made, except that where a warrantyexplicitly extends to future performance of the goods and discovery of the breach mustawait the time of such performance, the cause of action accrues when the breach is orshould have been discovered" (UCC 2-725 [2]).
Here, BMW met its prima facie burden by establishing that the plaintiff had fouryears from November 10, 2007, the date she accepted delivery of the vehicle, tocommence the Warranty Act cause of action, but that this action was not commenceduntil November 22, 2011. In opposition, the plaintiff failed to raise a question of fact asto whether the statute of limitations was tolled or was otherwise inapplicable, or theaction was actually commenced within the applicable limitations period (see City of Yonkers v 58A JVDIndus., Ltd., 115 AD3d 635, 637 [2014]; Matteawan On Main, Inc. v City of Beacon, 109 AD3d 590[2013]). The "New Vehicle Limited Warranty" did not guarantee future performance butonly promised to repair or replace defective parts for a specified period of time (seeAmourgianos v Cummins Diesel Sales Corp., 2008 NY Slip Op 31952 [U], *7-9[Sup Ct, NY County 2008]). Accordingly, the Supreme Court should have granted thatbranch of BMW's motion which was pursuant to CPLR 3211 (a) to dismiss the secondcause of action, which alleged a breach of the Warranty Act, as time-barred (see Banker v Vitanza, 115AD3d 690, 691 [2014]; City of Yonkers v 58A JVD Indus., Ltd., 115 AD3dat 637; Statler v Dell, Inc., 841 F Supp 2d 642, 648 [ED NY 2012]).
The Supreme Court properly denied that branch of BMW's motion which waspursuant to CPLR 3211 (a) to dismiss the third cause of action, which alleged a violationof General Business Law § 349, as time-barred. Actions pursuant toGeneral Business Law § 349 must be commenced within three years of thedate of accrual (see Gaidon v Guardian Life Ins. Co. of Am., 96 NY2d 201, 210[2001]; Statler v Dell, Inc., 841 F Supp 2d at 648), which first occurs when theplaintiff has been injured by a deceptive act or practice that is in violation of section 349(see Gaidon v Guardian Life Ins. Co. of Am., 96 NY2d at 210; Small vLorillard Tobacco Co., 94 NY2d 43, 55-56 [1999]). As this cause of action ispredicated on the sale of the vehicle, which took place in October 2010, it was timelycommenced on November 22, 2011, within the three-year statute of limitations (seeCPLR 214 [2]; Gaidon v Guardian Life Ins. Co. of Am., 96 NY2d at 210).Balkin, J.P., Leventhal, Hinds-Radix and LaSalle, JJ., concur.