Gray et al v. Toyota Motor Sales, U.S.A., Inc. et al, No. 2:2010cv03081 - Document 29 (E.D.N.Y. 2011)

Court Description: MEMORANDUM AND ORDER granting 14 Motion to Dismiss. For the foregoing reasons, Defendant's motion to dismiss is GRANTED. Plaintiffs may file an Amended Complaint, in accordance with the rulings in this Order, within thirty (30) days of the date of this Order. So Ordered by Judge Joanna Seybert on 8/25/11. C/ECF (Valle, Christine)

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Gray et al v. Toyota Motor Sales, U.S.A., Inc. et al Doc. 29 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------X WILLIAM S. GRAY, AUTO PARTNERS, LLC, SUNRISE AUTOMOTIVE, LLC d/b/a SUNRISE TOYOTA & SUNRISE SCION, Plaintiffs, -against- MEMORANDUM AND ORDER 10-CV-3081 (JS)(ETB) TOYOTA MOTOR SALES, U.S.A., INC., Defendant. ------------------------------------X APPEARANCES: For Plaintiffs: David A. Rosenfeld, Esq. Joseph Russello, Esq. Samuel H. Rudman, Esq. Robbins Geller Rudman & Dowd, LLP 58 South Service Road, Suite 200 Melville, NY 11747 Jonathan Paul Whitcomb, Esq. Diserio Martin O'Connor & Castiglioni LLP One Atlantic Street, 8th Floor Stamford, CT 06901 Scott M. Harrington, Esq. Diserio, Martin, O'Conner & Castiglioni LLP 50 Main Street, Suite 1000 White Plains, NY 10606 For Defendant: Carl J. Chiappa, Esq. Nathaniel Scott Boyer, Esq. Hogan & Hartson 875 Third Avenue New York, NY 10022 SEYBERT, District Judge: Plaintiffs William S. Gray ("Gray"), Auto Partners, LLC ("Auto Partners") and Sunrise Automotive, LLC ("Sunrise" and, collectively, "Plaintiffs") sued Toyota Motor Sales, USA, Dockets.Justia.com Inc. ("Defendant") and Toyota Motor Corp ("TMC"). Plaintiffs assert several state law claims, as well as claims under New York's Franchised Motor Vehicle Dealer Act (the "Dealer Act") and the federal Dealers' Day in Court Act, 15 U.S.C. 1221 et seq. (the "Day in Court Act"). Plaintiffs voluntarily dismissed their Pending claims against TMC. Defendant's motion to dismiss. motion is granted and before the Court is For the following reasons, that Plaintiffs shall file an Amended Complaint, if at all, within thirty days of this Order. BACKGROUND Sunrise Oakdale, New Agreement is York. between a franchised (Compl. Sunrise ¶ Toyota 4.) and Dealer Pursuant Defendant located to (the a in Dealer "Dealer Agreement"), Sunrise is operated by Auto Partners, a limited liability company managed by Gray. (Id. ¶ 16.) Plaintiffs do not elaborate on the ownership structure between Plaintiffs in the Complaint, but they assert in their motion papers that Auto Partners owned 99% of Sunrise and Gray owned the remaining 1%. Gray, in turn, also owned 95% of Auto Partners. Among contains ownership a clause without other that provisions, prohibits Defendant’s the Sunrise written 2 (Pls. Opp. 16.) Dealer from consent. Agreement transferring (Chiappa Declaration, Ex. 1, Dealer Agreement Sec. VI.)1 Such consent, the contract states, shall not be unreasonably withheld. (Id.) The Dealer Agreement illustrates some of the factors that would constitute reasonable reasons for the Defendant to withhold its consent: DEALER agrees that factors which would make DISTRIBUTOR’S withholding of consent reasonable would include, without limitation, the failure of a new Owner or General Manager to meet DISTRIBUTOR’S standards with regard to financial capability, experience and success in the automobile dealership business. (Id.) In 2006, Plaintiffs attempted to sell franchise to Group 1 Automotive, Inc. (“Group 1”). the Sunrise In October, Gray entered into a nonbinding letter of intent with Group 1, pursuant to which Group 1 agreed to purchase Sunrise for: (i) the net value of Sunrise’s assets; (ii) $17 million for Sunrise’s goodwill; and (iii) the lesser of $15 million or the appraised value operated. of the buildings and land on which Sunrise In furtherance of the proposed sale, Group 1 (which already operated two Toyota dealerships) requested Defendant’s consent to consummate the sale, 1 but the Defendant refused, The Court may consider the Dealer Agreement on a motion to dismiss because the agreement is integral to Plaintiffs’ Complaint and there is no dispute regarding its authenticity. See Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). 3 citing Group 1’s unsatisfactory “consumer satisfaction index” (“CSI”) score. As a result of Defendant’s refusal, the Group 1 deal fell through. (Compl. ¶¶ 18-20.) Plaintiffs maintain that the CSI score was merely a pretext for Defendant’s refusal, but they do not elaborate on a possible ulterior motive. (Id. ¶ 21.) In January 2007, Plaintiffs explored a second proposal to sell Sunrise, this time to Don Lia (“Lia”). Gray, on behalf of Sunrise, entered into an In February, Asset Purchase Agreement with Lia by which Lia agreed to purchase Sunrise’s customer and service files, its goodwill and its trade name for approximately $16 million. Also in February, Gray, on behalf of Auto Partners, entered into an Agreement to Sell and Purchase with Lia, by which Lia agreed to buy the land and buildings for $15 million. On (Id. ¶¶ 23-27.) or about May 4, consent for the proposed sale. sixty days, and Gray’s consent on July 11, 2007. 2007, Lia sought Defendant’s Defendant did not respond within counsel reiterated the request for Defendant never formally responded to either request, but a representative of Defendant “advised Lia that he should withdraw his unsatisfactory CSI rating.” application on (Id. ¶¶ 29-30.) the basis of an As a result, on July 24, 2007, Gray sent Lia a letter terminating the proposed 4 sale. (Id. ¶ 32) A year later, Plaintiffs tried to sell Sunrise a third time. In May 2008, Gray, on behalf of Sunrise, entered into an Asset Purchase Agreement with an affiliate of Len Stoler, Inc. (“LSI”). LSI was able to obtain Defendant’s consent to the proposed transfer, and it bought Sunrise for $24,250,000. (Id. ¶¶ 34-37.) Plaintiffs thereafter commenced this suit, asserting essentially that Defendant unreasonably withheld its consent to the Group 1 and Lia sales and that this forced Plaintiffs to sell Sunrise to LSI for less than what Group 1 was willing to pay. They also claim that they are entitled to recover approximately $500,000 in brokers’ commissions they incurred as a result of their multiple attempts to sell the dealership. (Id. ¶ 38.) DISCUSSION Plaintiffs Dealer Agreement; (2) assert eight claims: (1) breach of the breach of the implied covenant of good faith and fair dealing; (3) tortious interference with contract; (4) tortuous interference with a prospective economic advantage; (5) negligence; (6) fraud; (7) violation of the Dealer Act; and (8) violation of the Day in Court Act. For the reasons that follow, Defendant’s motion to dismiss is granted. 5 Plaintiffs may file an Amended Complaint in accordance with the discussion below. I. The Motion to Dismiss To survive a Rule 12(b)(6) motion, a plaintiff must plead sufficient factual allegations in the complaint to “state a claim [for] relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929, 949 (2007). The complaint does not need “detailed factual allegations,” but it demands “more than labels and conclusions, and a formulaic recitation the Id. at 555. elements of a cause of action will not do.” of In addition, the facts pleaded in the complaint “must be enough to raise a right Determining to relief whether a above the plaintiff speculative has met his level.” burden Id. is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” 572 F.3d 66, 72 (2d Cir. 2009). of the elements of a cause Harris v. Mills, However, “[t]hreadbare recitals of action, conclusory statements, do not suffice.” supported by mere Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). Additionally, under Federal Rule of Civil Procedure 9(b), claims pleading sounding requirement. in fraud Under are this 6 subject standard, to a heightened plaintiffs must “allege facts that give rise to a strong inference of fraudulent intent.” Cohen v. Cohen, __ F. Supp. 2d __, 2011 WL 1157283, at *7 (S.D.N.Y. Mar. 29, 2011) (quoting Moore v. PaineWebber, Inc., 189 F.3d 165, 173 (2d Cir. 1999)). A. Breach of Contract Plaintiffs’ claim that Defendant breached the Dealer Agreement by unreasonably withholding consent rests essentially on arguments that Defendant’s considering the Proposed Dealers’ CSI scores in determining whether to bless the proposed sales was either (1) per se unreasonable or (2) a pretext for an unspecified ulterior motive. Either way, Plaintiff’s allegations do not set forth a plausible claim for relief. On the first point, the Court rejects Plaintiffs’ bald assertions that a CSI rating is not an acceptable reason to withhold consent. Customer goodwill is critical to any business, and it is logical for Defendant to be concerned about its dealers’ ability to satisfy their customers. See Colonial Imports Corp. v. Volvo Cars of N. Am., Inc., No. 98-CV-0342, 2001 WL 274808, at *6 (D.N.H. 2001); see also Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d 201, 203, 206 (6th Cir. 1995) (affirming summary judgment after concluding that conditioning a dealer’s right satisfactory to levels transfer of on customer 7 an applicant’s satisfaction” “meeting was not unreasonable in light of dealer’s previous unsatisfactory performance); Ford Motor Co. v. W. Seneca Ford, Inc., No. 91-CV0784, 1996 WL 685723, at *5 (W.D.N.Y. 1996) (Under New York’s Franchised Motor Vehicle Dealer Act, “Ford was also justified in terminating West Seneca for its failure to achieve a sufficient level of customer satisfaction and service.”); In re Van Ness Auto Plaza, Inc., 120 B.R. 545, 550 (Bankr. N.D. Cal. 1990) (“It is not beyond the realm of reasonable decisions for a manufacturer of luxury cars to refuse to accept a dealer with CSI rankings that are average at best and possibly well-below average.”). This is particularly true because car dealers are often the face of a manufacturer, responsible for the ongoing integrity of the brand. Plaintiffs’ argument that “neither the Dealer Agreement nor applicable law permitted” Defendant to use CSI ratings to withhold consent borders on sophistry (Pls. Opp. 4); the consent Dealer Dealer is Agreement’s plainly Agreement list of non-exhaustive. Sec. VI (“DEALER grounds for (Chiappa agrees that withholding Decl., Ex. factors 1, which would make DISTRIBUTOR’s withholding of consent reasonable would include, without limitation, . . .) (emphasis added).) Of course, by holding here that Plaintiffs have not stated a claim, the Court does not suggest that Defendant’s refusal to consent was per se reasonable. Rather, the Complaint falls short here 8 because demands Iqbal more than Defendant acted unreasonably. conclusory allegations that 129 S. Ct. at 1951 (“It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.”) On the second point, Plaintiffs’ suggestion that Defendant’s reliance on CSI ratings was merely a pretext for refusing consent to the Group 1 and Lia sales suffers from the same deficiencies discussed already. To survive a motion to dismiss, facts Plaintiffs accusation is must founded. state Id. the (“While on legal which their conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). B. Breach of Covenant of Good Faith and Fair Dealing Plaintiffs’ claim that Defendant breached the implied covenant of good faith and fair dealing is duplicative of their breach of contract claim and must be dismissed. Plaintiffs’ argument that this claim is merely an alternative theory of their case is unavailing; the claims are not “in the alternative” when they are based on the exact same allegations. See, e.g., Bradbury v. PTN Pub. Co., Inc., No. 93-CV-5521, 1998 WL 386485, at *8 (E.D.N.Y. 1998). Rather, as Defendant notes, Plaintiffs' claims are redundant and the implied covenant claim 9 must fail. This is true even though the Court has already dismissed the breach of contract claim. Ins. Co., See Odingo v. Allstate 251 A.D.2d 81, 672 N.Y.S.2d 727, 1998 N.Y. Slip Op. 05416 (1st Dep’t 1998) (dismissing implied covenant claim as duplicative when breach of contract claim was also dismissed). Plaintiffs argue that the “bad faith nature” of Defendant’s conduct sets their implied covenant claim apart from their breach of contract claim. For the reasons mentioned already in its discussion of Plaintiffs’ pretext allegations, the Court agrees with the Defendant that Plaintiffs have not See supra at 5. satisfactory alleged “bad faith.” C. Tortious Interference with Contract and Tortious Interference with Prospective Economic Advantage Counts III and IV of the Complaint allege tortious interference prospective with contract economic and tortious advantage, interference respectively. with Claims a for tortious interference with a contract fail where, as here, the Defendant is accused simply of exercising its right not to See Tri-County Motors, Inc. approve the proposed transactions. v. Am. Suzuki Motor Corp., 494 F. Supp. 2d 161, 175 (E.D.N.Y. 2007) (manufacturer “can incur no liability for tortious interference by simply exercising its right to not approve the sale transaction” between seller 10 of a franchise and a prospective seller). To the extent Plaintiffs’ claim for tortious interference of prospective economic advantage can be construed as one for tortious interference of a prospective contract, this claim fails because Plaintiffs have not alleged conduct on the level of a “crime or independent tort.” Corp. v. Noonan, 3 N.Y.3d 182, 190, 818 N.E.2d Carvel 1100, 785 N.Y.S.2d 359 (2004). D. Negligence Plaintiffs’ negligence claim must be dismissed because it is wholly premised on a contractual duty. (See Compl. ¶ 74.) “Merely charging a breach of a ‘duty of due care’, employing language familiar to tort law, does not, without more, transform a simple breach of contract into a tort claim.” Clark- Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382, 390, 521 N.Y.S.2d 653 (1987). E. Fraud Plaintiffs’ their allegations fraud fall far claim must short of be the dismissed heightened because pleading standard required by Federal Rule of Civil Procedure 9(b). FED. R. CIV. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.”). Plaintiffs apparently believe that Defendant fraudulently concealed the reasons for its refusal to consent to 11 (See Pl. Opp. 12.) the Group 1 and Lia sales. Among other shortcomings, Plaintiffs do not identify the representatives of Defendant responsible Plaintiffs. See for conveying Manhattan Defendants’ Motorcars, Inc. v. refusal to Automobili Lamborghini, S.p.A., 244 F.R.D. 204, 216 (S.D.N.Y. 2007). Even if they had, the Court highly doubts that these allegations would have amounted to a plausible claim for relief. F. New York’s Franchised Motor Vehicle Dealer Act Plaintiffs assert claims under two sections of the Dealer Act: Section 463(2)(k) and Section 466. 1. As Plaintiffs’ Section 463 Claim is Time-Barred is relevant here, Section 463(2)(k) makes it unlawful for a manufacturer to “unreasonably withhold consent to the sale or transfer” of a franchised dealership and requires a manufacturer who refuses consent to provide specific reasons for its decision within sixty days of the franchise’s request for consent. This provision has a 120-day statute of limitations, which provides that “[u]pon receipt of notice and reasons for the franchisor's withholding of consent, the franchised motor vehicle dealer may within one hundred twenty days have a review of the manufacturer's decision . . . .” Defendant argues that Plaintiffs’ N.Y. V.T.L. § 463(2)(k). claim is time-barred, and Plaintiffs counter that the limitations period has not yet run 12 because Defendant has never provided specific reasons for its refusal to consent to the Group 1 and Lia sales (Pls. Opp. 14). Plaintiffs’ Section 463 claims are time-barred. As to the Group 1 sale, the Complaint is plain that Defendant refused to consent “on the purported basis that satisfaction index Group 1 had (“CSI”) an unsatisfactory consumer rating.” (Compl. ¶ 20.) Plaintiffs do not specify the date, but the only reasonable inference is that it was on or before January 25, 2007, the date on which Plaintiffs signed a letter of intent with Lia, the next prospective buyer. filed this action on June 25, (Id. ¶ 24.) 2010, well after Plaintiff the 120-day limitations period had expired. As to the Lia sale, the Complaint states that “[a]lthough [Defendant] did not formally respond to” Plaintiffs’ request that for he consent, should Defendant’s withdraw his unsatisfactory CSI rating.” representative application (Id. ¶ 30.) on “advised the basis of Lia an No date is given, but it was presumably on or before July 24, 2007, the date on which Plaintiffs Complaint squashed suggests the anticipated that Defendant sale. provided (Id. 32.) The its notice and reasons to Lia and not to Plaintiffs, but the only reasonable inference from Plaintiffs’ allegations is that Lia relayed this information to them, in turn causing Plaintiffs to send the July 13 24 letter ending the transaction. Section 463 does not specify the manner or content of the notice and reasons, however, and the Court is not aware of cases holding that the limitations period is not triggered by Plaintiffs’ alleged facts. Accordingly, as with the Group 1 sale, Plaintiffs’ Section 463 claim arising out of the Lia sale was filed too late. 2. Plaintiffs’ Section 466 Claim is Dismissed Plaintiffs’ Section 466 claim is insufficiently pled and must be Plaintiffs’ dismissed. allegations, Before turning however, the to the Court adequacy resolves of the parties’ disagreement as to this section’s limitations period because this issue will likely arise if Plaintiffs amend their Complaint. Section 466 is silent as to its statute of limitations. Defendant claims the proper period is 120 days or, in the alternative, three years and Plaintiffs argue it is six years. The Court concludes that the proper period is three years based on New York Civil Practice Law and Rules Section 214(2), which provides that actions “to recover upon a liability . . . created or imposed by statute” must be commenced within three years. N.Y. C.P.L.R. 214(2); see Gaidon v. Guardian Life Ins. Co. of Am., 96 N.Y.2d 201, 208, 750 N.E.2d 1078, 1082, 727 N.Y.S.2d 30, 34 (2001). Amorosi v. South Colonie Independent School District, cited by Defendant in support of its 120-day 14 argument, is inapplicable. 9 N.Y.3d 367, 880 N.E.2d 6, 849 N.Y.S.2d 485 (2007). That case concluded simply that the New York one-year Education against Law’s school districts limitation trumped the period for three-year limitations period otherwise applicable to discrimination claims. case, the Education claims. court Law concluded provision that made 9 N.Y.3d at 373. it the unambiguous applicable to actions In that text of the discrimination That case did not consider a statute that is silent as to its limitations period and it does not, contrary to Defendant’s claim, stand for the idea that “[w]here a specific specific (and type applies.” shorter) of action” (Def. Br. 19.) unpersuasive. limitations the period shorter exists period for a automatically Plaintiffs’ six-year argument is also New York’s C.P.L.R. Section 214(2) applies to most statutory causes of action. See Gaidon, 96 N.Y.2d at 208. Section 466 is not, contrary to Plaintiffs’ claim, a cause of action “for which no limitation is specifically prescribed by law.” N.Y. C.P.L.R. 213(1). The proper limitations period may be relevant to an Amended Complaint. Plaintiffs’ Section plausible claim. It In 466 the meantime, allegations the for Court failure to Section 466(1) provides: shall be unlawful 15 for a franchisor dismisses state a directly or indirectly to impose unreasonable restrictions on the franchised motor vehicle dealer relative to transfer, sale, right to renew or termination of a franchise, discipline, noncompetition covenants, site-control (whether by sublease, collateral pledge of lease or otherwise), right of first refusal to purchase, option to purchase, compliance with subjective standards and assertion of legal or equitable rights with respect to its franchise or dealership. Thus the harm sought to be remedied by this provision is “unreasonable restrictions” on a dealer’s right to, among other things, transfer, sell or renew its franchise.2 Plaintiffs’ case is essentially that Defendant imposed unreasonable restrictions on their ability to transfer Sunrise by withholding its consent to the Group 1 and Lia sales on the basis of low CSI ratings. As discussed already, imposing a CSI threshold is not a per se unreasonable restriction on a dealer’s right to transfer his franchise and, without more, state a claim for relief. Plaintiffs’ allegations do not In so ruling, the Court discounts Plaintiffs’ allegations of pretext because, as discussed above, they are too conclusory to be credited. 2 Section 466(2) provides that a restriction that prevents a dealer from obtaining the fair value of its franchise will be deemed unreasonable. To the extent Plaintiffs rely on this provision, their claim fails because they have not alleged a plausible claim that Defendant tried to prevent them from obtaining fair value for Sunrise or that the price they eventually obtained from LSI was not fair value. 16 G. Federal Dealers’ Day in Court Act Plaintiffs also assert a claim under the Day in Court Act. Specifically, they claim that Defendant violated Section 1222 of that act, which provides in part that: An automobile dealer may bring suit against any automobile manufacturer . . . by reason of the failure of said automobile manufacturer . . . to act in good faith in performing or complying with any of the terms or provisions of the franchise. . . . “Good faith” is defined under the Day in Court Act as: the duty of each party to any franchise, and all officers, employees, or agents thereof to act in a fair and equitable manner toward each other so as to guarantee the one party freedom from coercion, intimidation, or threats of coercion or intimidation from the other party. . . . 15. U.S.C. § 1221(e). Plaintiffs argue that Defendant’s refusal to consent to the Group 1 and Lia sales constitutes a lack of good faith. The Court disagrees. As used in the Day in Court Act, good faith “has a narrow, restricted meaning.” Inc. v. World-Wide Volkswagen Corp. 1987). To prevail, a “dealer Empire Volkswagen 814 F.2d 90, 95 (2d Cir. must demonstrate that the manufacturer exercised coercion or intimidation or made threats against the objective.” dealer to achieve Id. (citations omitted). 17 an improper or wrongful Here, Plaintiffs have not alleged coercive, intimidating or threatening conduct on Defendant’s part. II. Amending the Complaint In their opposition, amend the Complaint. Plaintiffs requested leave to Leave to amend should be freely given, see, e.g., Alexandre v. Town of Hempstead, __ F.R.D. __, 2011 WL 2181461, at *4 (E.D.N.Y. following rulings, Jun. 4, 2011), and subject to the Plaintiffs may amend their Complaint within thirty days of this Order. Gray and Auto Partners are not signatories to the Dealer Agreement and therefore do not have standing to bring claims for breach of contract or breach of the implied covenant of good faith and fair dealing. infer their third-party Plaintiffs implore the Court to beneficiary status under the Dealer Agreement, but the contract’s plain language belies any intent to confer a benefit on Gray or Auto Partners. beneficiary exists, however, only if the “A third-party parties to that contract intended to confer a benefit on him when contracting; it is not enough that some benefit incidental to the performance of the contract may accrue to him.” McPheeters v. McGinn, Smith & Co., Inc., 953 F.2d 771, 773 (2d Cir. 1992) (citations and internal quotations omitted). Here, the Dealer Agreement’s “Standard Provisions”--which are incorporated into the Dealer 18 Agreement--contain a “no third-party provisions” clause (Chiappa Decl., Ex. 2, Standard Provisions Art. XXVI.I), and Plaintiffs have not pointed to anything to overcome the text of not assert that clause. Gray and Auto Partners also may claims under the MVA Act because they are not “franchised motor vehicle dealers.” See N.Y. V.T.L. § 469; see also id. § 462 (defining “franchise motor vehicle dealer”). Co., cited by Plaintiffs, is not Bevilacque v. Ford Motor to the contrary. There, although the court permitted a dealer’s minority shareholder to remain in the case, the defendants in that case had not moved to dismiss the shareholder. 125 A.D.2d 516, 520, 509 N.Y.S.2d 595, 600 (2d Dep't 1986). Likewise, Gray and Auto Partners may not assert claims under the Day in Court Act. See Vincel v. White Motor Corp., 521 F.2d 1113, 1120 (2d Cir. 1975) (“When, as here, a dealership is doing business in corporate form, the statute contains no hint that it intends a departure from the established principle that the locus of the right of action is the corporation.”); Bronx Chrysler Plymouth, Inc. v. Chrysler Corp., 212 F. Supp. 2d 233, 243 (S.D.N.Y. 2002) Defendant also argues that Gray and Auto Partners do not have standing to assert negligence and fraud claims. 19 (Def. Br. 21.) The Court refrains from considering these issues here. It will address them, if appropriate, if Defendant raises them in response to an Amended Complaint. CONCLUSION For the dismiss is GRANTED. foregoing reasons, Defendant’s motion to Plaintiffs may file an Amended Complaint, in accordance with the rulings in this Order, within thirty (30) days of the date of this Order. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: August 25 , 2011 Central Islip, New York 20

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