Duchimaza v. Niagara Bottling, LLC, No. 1:2021cv06434 - Document 40 (S.D.N.Y. 2022)

Court Description: OPINION & ORDER re: 24 CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 20 Declaration in Support of Motion, 19 MOTION to Dismiss First Amended Complaint, 21 Memorandum of Law in Support of Motion < i> addressed to Judge Pa filed by Eladia Duchimaza, 19 MOTION to Dismiss First Amended Complaint filed by Niagara Bottling, LLC. For the foregoing reasons, the Court grants Niagara's motion to dismiss in full, with prejudic e to each of her GBL, fraud, and unjust enrichment claims. Duchimaza's breach of express warranty claim, however, is dismissed without prejudice. That is because, on its first motion to dismiss, Niagara did not attack the original complaint on t he ground on which the Court dismissed that claim today, and, given the nature of its defect, that claim may be capable of successful repleading. If Duchimaza chooses to replead the breach of express warranty claim, the Court directs her, by August 1 2, 2022, to move to for leave to replead on that claim only, explaining why it can be salvaged. Niagara's opposition or other response will be due August 19, 2022. The Clerk of Court is respectfully directed to terminate the motions pending at docket numbers 19 and 34. SO ORDERED. (Motions due by 8/12/2022. Responses due by 8/19/2022) (Signed by Judge Paul A. Engelmayer on 8/5/2022) (mml)