# Catalano v. MarineMax

> District Court, E.D. New York · March 10, 2022

URL: https://www.frixlaw.com/law-library/cases/10307616

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 10, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10307616

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
David Catalano and Joanne Catalano,

Plaintiffs,
MEMORANDUM & ORDER
-against- 20-CV-04134 (DG) (JMW)

MarineMax; MarineMax Northeast LLC;
Brunswick Corp.; SeaRay Boats; and
Mercury Marine,

Defendants.
--------------------------------------------------------------X
DIANE GUJARATI, United States District Judge:
On September 3, 2020, Plaintiffs David Catalano and Joanne Catalano (collectively,
“Plaintiffs”) commenced this action against Defendants MarineMax, MarineMax Northeast LLC,
Brunswick Corp., SeaRay Boats, and Mercury Marine (collectively, “Defendants”), asserting
seven causes of action: violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.;
breach of express warranty; breach of implied warranty; violation of the Truth in Lending Act,
15 U.S.C. § 1601 et seq.; violation of New York General Business Law § 349; violation of New
York General Business Law § 198-D; and breach of contract. See generally Complaint
(“Compl.”), ECF No. 1.
Pending before the Court is Defendants’ motion for judgment on the pleadings, in which
Defendants seek dismissal of Plaintiffs’ Complaint, pursuant to Federal Rule of Civil Procedure
12(c) (“Rule 12(c)”). See generally Notice of Motion, ECF No. 23; Declaration of David S.
Rutherford in Support of Defendants’ Motion for Judgment on the Pleadings (“Rutherford
Declaration”), ECF No. 24;1 Memorandum in Support of Defendants’ Motion for Judgment on

1 Together with the Rutherford Declaration, ECF No. 24, Defendants submitted seven exhibits,
see ECF Nos. 24-1–24-7. In referring to these exhibits, the Court refers to the lettering
the Pleadings (“Defs.’ Br.”), ECF No. 25; Reply in Support of Defendants’ Motion for Judgment
on the Pleadings (“Defs.’ Reply”), ECF No. 28.2 Plaintiffs oppose Defendants’ motion. See
Memorandum in Opposition to Defendants’ Motion for Judgment on the Pleadings (“Pls.’ Br.”),
ECF No. 27.

For the reasons set forth below, Defendants’ motion for judgment on the pleadings is
granted and the claims in the Complaint are dismissed without prejudice.
STANDARD OF REVIEW
Rule 12(c) of the Federal Rules of Civil Procedure provides: “After the pleadings are
closed – but early enough not to delay trial – a party may move for judgment on the pleadings.”
Fed. R. Civ. P. 12(c). “In deciding a 12(c) motion, the Court may consider ‘the complaint, the
answer, any written documents attached to them, and any matter of which the court can take
judicial notice for the factual background of the case.’” Thyssenkrupp Materials NA, Inc. v. M/V
Kacey, 236 F. Supp. 3d 835, 838 (S.D.N.Y. 2017) (quoting L-7 Designs, Inc. v. Old Navy, LLC,
647 F.3d 419, 422 (2d Cir. 2011)). “The Court may also consider documents incorporated into

the complaint by reference or integral to the complaint, provided there is no dispute regarding
their authenticity, accuracy, or relevance.” Id. (citing L-7 Designs, Inc., 647 F.3d at 422). “A
Rule 12(c) motion should be granted ‘if, from the pleadings, the moving party is entitled to

ascribed to the exhibits in the Rutherford Declaration. For example, the Court refers to the
submission docketed at ECF No. 24-1 as “Defs.’ Ex. A.” In citing to these exhibits, the Court
refers to the pagination generated by the Court’s electronic case filing system (“ECF”), rather
than the exhibits’ internal pagination. All other citations are to the cited document’s internal
pagination.
2 Although Defendants’ motion was docketed as a “Motion to Dismiss for Failure to State a
Claim,” see ECF No. 23, Defendants’ motion papers make clear that Defendants’ motion is a
motion for judgment on the pleadings made pursuant to Rule 12(c), see, e.g., Defs.’ Br. at 1.
Accordingly, the Court herein refers to Defendants’ motion as a motion for judgment on the
pleadings.
judgment as a matter of law.’” Id. (quoting Burns Int’l Sec. Servs., Inc. v. Int’l Union, United
Plant Guard Workers of Am. (UPGWA) & Its Loc. 537, 47 F.3d 14, 16 (2d Cir. 1995)).
“The standard for addressing a motion for judgment on the pleadings pursuant to Rule
12(c) is the same as the standard used in evaluating a motion to dismiss under Rule 12(b)(6).”

Rojas v. Berryhill, 368 F. Supp. 3d 668, 669 (S.D.N.Y. 2019) (citing L-7 Designs, Inc., 647 F.3d
at 429; Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010)). To survive
dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). The court must “accept all ‘well-pleaded factual allegations’ in the complaint as
true . . . [and] ‘construe all reasonable inferences that can be drawn from the complaint in the
light most favorable to the plaintiff.’” Lynch v. City of New York, 952 F.3d 67, 74-75 (2d Cir.

2020) (first quoting Iqbal, 556 U.S. at 679; then quoting Arar v. Ashcroft, 585 F.3d 559, 567 (2d
Cir. 2009)). However, “labels and conclusions” or “formulaic recitation[s] of the elements of a
cause of action will not do,” and dismissal is proper where “the allegations in a complaint,
however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 555, 558.
The court is “not bound to accept as true a legal conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
BACKGROUND
I. Factual Background3
A. The Vessel and Plaintiffs’ Issues with the Vessel
On or about August 19, 2014, Plaintiffs purchased a 2014 Sea Ray 300 SLX, HIN

SERV2227A414 (the “vessel”) from MarineMax Northeast LLC. Compl. ¶ 13. The purchase
price of $165,780.00, plus interest, taxes, and fees, was financed through MarineMax. Id. ¶ 14.4
The vessel was sold as new. Id. ¶ 14.5 The vessel was equipped with engines manufactured by
Mercury Marine. Id. ¶ 16.
After the vessel’s purchase, and commencing sometime in or about late September or
early November of 2014, and continually thereafter, Plaintiffs experienced “nothing but
problems, mechanical and otherwise, with the vessel.” Id. ¶ 17. The “multitude of issues” with
the vessel included, but were not limited to, “throttle, transmission and gear box issues, faulty
sensors, faulty fuel lines, electrical, battery and alternator issues, power trim issues, water pump
an[d] overheating issues, loss of power engine misfiring and exhaust issues, as well as manifold

and riser gasket issues.” Id. ¶ 18. The vessel “also apparently suffered from defective
upholstery as the surface thereof developed unsightly spots of a pinkish hue all over the white
upholstery.” Id. The vessel also was “plagued with general poor performance which grew
increasingly notable season after season.” Id. ¶ 19. Plaintiffs allege that these issues gravely

3 The following facts, which are viewed in the light most favorable to Plaintiffs, are drawn from
the Complaint and from certain documents incorporated into the Complaint by reference or
integral to the Complaint, as to which there is no dispute regarding authenticity, accuracy, or
relevance.
4 The Complaint includes two consecutive paragraphs numbered “14.” Here, the Court refers to
the first of the two paragraphs numbered “14.”
5 Here, the Court refers to the second of the Complaint’s two paragraphs numbered “14.”
diminished the value of the vessel and deprived Plaintiffs of the use and enjoyment of the vessel
that they bargained for and prohibited Plaintiffs from utilizing the vessel for its intended and
basic purpose. Id. ¶ 20.
Despite repeated demands by Plaintiffs, Defendants failed or refused to adequately rectify

many of the issues plaguing the vessel. Id. ¶ 21. On or about July 19, 2019, Plaintiffs traded in
the vessel at a substantial loss. Id. ¶ 22.
B. Relevant Agreements and Provisions
1. The Purchase Agreement
Plaintiffs purchased the vessel pursuant to a contract for the purchase and sale of the
vessel, entered into by Plaintiffs and the MarineMax Defendants (the “Purchase Agreement”).
See Compl. ¶ 77; Defs.’ Ex. C (the Purchase Agreement), ECF No. 24-3.6
The front page of the two-page Purchase Agreement states, in relevant part:
BUYER ACKNOWLEDGES RECEIVING A FULLY COMPLETED COPY
OF THIS AGREEMENT. BUYER ACKNOWLEDGES READING AND
UNDERSTANDING ALL OF THE TERMS AND CONDITIONS IN THIS
AGREEMENT, INCLUDING THE TERMS AND CONDITIONS ON THE
REVERSE SIDE OF THIS AGREEMENT.

6 The Court considers the Purchase Agreement in connection with deciding the instant motion
because the Purchase Agreement, which is mentioned throughout the Complaint, see, e.g.,
Compl. ¶¶ 77-79, 81, is incorporated by reference in – and integral to – the Complaint, and
because there is no dispute regarding the Purchase Agreement’s authenticity, accuracy, or
relevance, see Pls.’ Br. at 4-5 (discussing the Purchase Agreement as the relevant “contract for
the purchase of the vessel”).
The Court notes that, although Plaintiffs allege that the Purchase Agreement was entered into
by Plaintiffs and “the MarineMax Defendants,” Compl. ¶ 77 – seemingly referring to both
MarineMax and MarineMax Northeast LLC – the Purchase Agreement itself appears to refer
only to MarineMax Northeast LLC, see Purchase Agreement at 1. Although this distinction
does not alter the Court’s analysis herein, the Court analyzes the Purchase Agreement as
though it was an agreement between Plaintiffs and both MarineMax and MarineMax
Northeast LLC. The Court herein refers to these defendants collectively as the “MarineMax
Defendants.”
SEE THE REVERSE SIDE OF THIS AGREEMENT FOR IMPORTANT
INFORMATION REGARDING LIMITATIONS OF WARRANTIES.

Purchase Agreement at 1 (emphasis in original). These statements appear directly above a pair
of signature lines reflecting the signature of each Plaintiff. See id.
The reverse side of the Purchase Agreement states, under the header “ADDITIONAL
TERMS AND CONDITIONS,” in relevant part:
1. MANUFACTURER’S WARRANTY. The boat, motor and accessories
sold pursuant to this Agreement are only subject to applicable manufacturer’s
warranties, if any, except as otherwise expressly provided in this Agreement.

2. DISCLAIMER OF WARRANTIES: THE BOAT, MOTOR AND
ACCESSORIES BEING PURCHASED PURSUANT TO THIS
AGREEMENT ARE SOLD BY SELLER “AS IS” AND SELLER MAKES
NO WARRANTIES ON ITS OWN BEHALF, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, unless Seller gives Buyer
a written warranty on its own behalf or Seller enters into a service contract
in connection with this sale or within 90 days of sale. If Seller gives Buyer a
written warranty on its own behalf or enters into a service contract in
connection with this sale or within 90 days of sale, then any implied
warranties shall be limited in duration to the duration of Seller’s written
warranty or service contract. IN ALL CASES, SELLER SHALL NOT BE
LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING FROM THE BREACH OF THIS AGREEMENT, ANY EXPRESS
OR IMPLIED WARRANTY OR OTHERWISE, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW. . . .

8. ENTIRE AGREEMENT. This agreement constitutes the entire
agreement between the parties and no other verbal, written or printed
representations, claims or inducements are incorporated into this Agreement,
unless in writing and signed by both parties. This Agreement supersedes any
prior Purchase Agreements between Buyer and Seller for the purchase of a boat,
motor and/or accessories that had not been consummated. Except as specifically
set forth in this Agreement, Seller disclaims any representations or statements by
any agents, employees or representatives, whether verbal or in writing, in
advertisements or brochures, and Buyer has not relied upon any such
representations or statements.

9. ATTORNEY’S FEES. In the event it is necessary for Seller to employ an
attorney to enforce any of the terms of this Agreement or to defend any lawsuit
arising out of this Agreement, then Buyer shall pay all of Seller’s costs, including
reasonable attorney fees, whether incurred in trial, appellate or bankruptcy
proceedings, plus court costs, depositions, investigation and travel expense and
any other necessary expenses unless a judgment is entered against Seller for the
complete relief sought in any complaint or pleading.

Id. at 2 (emphasis in original).7
2. The Limited Warranty
Plaintiffs purchased an extended 6-year warranty issued by Brunswick Corp. (the
“Limited Warranty”). See Compl. ¶ 15; Defs.’ Ex. D (the Limited Warranty), ECF No. 24-4.8

7 The portion of the second paragraph of the Purchase Agreement’s additional terms and
conditions reading “THE BOAT, MOTOR AND ACCESSORIES BEING PURCHASED
PURSUANT TO THIS AGREEMENT ARE SOLD BY SELLER ‘AS IS’ AND SELLER
MAKES NO WARRANTIES ON ITS OWN BEHALF, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE” appears in a larger font size than that which
is used in the other portions of the Purchase Agreement. See Purchase Agreement at 2
(emphasis in original).
8 The Court considers the Limited Warranty in connection with deciding the instant motion
because the Limited Warranty, which is mentioned in the Complaint, see, e.g., Compl. ¶ 15, is
incorporated by reference in – and integral to – the Complaint, and because there is no dispute
regarding the Limited Warranty’s authenticity, accuracy, or relevance, see Pls.’ Br. at 6
(discussing the warranty purchased from Brunswick Corp.).
The Court notes that, although Plaintiffs allege that they purchased the Limited Warranty
from Brunswick Corp., Compl. ¶ 15, the Limited Warranty appears to have been issued by
“The Sea Ray Division of Brunswick Corporation and Sea Ray Boats, Inc.,” see Limited
Warranty at 2, indicating that the Limited Warranty perhaps was purchased from both
Brunswick Corp. and SeaRay Boats. Notably, although Plaintiffs allege that SeaRay Boats “is
a subsidiary of Defendant Brunswick,” see Compl. ¶ 6, Plaintiffs make no specific factual
allegations as to the role that SeaRay Boats played in the complained-of conduct. Even so,
given the Limited Warranty’s apparent reference to SeaRay Boats, the Court – in an
abundance of caution – analyzes the Limited Warranty as though it was purchased from both
Brunswick Corp. and SeaRay Boats and as though both Brunswick Corp. and SeaRay Boats
are subject to the Limited Warranty’s provisions. The Court herein refers to these defendants
collectively as the “Brunswick Defendants.” Whether the Limited Warranty was issued by
Brunswick Corp., SeaRay Boats, or both Brunswick Corp. and SeaRay Boats does not alter
the Court’s analysis herein.
The Limited Warranty provides that, subject to certain remedies, exclusions, and
limitations, “the selling dealer will repair or replace, at its sole discretion, any defects in material
or workmanship in the Sea Ray Boat that are reported within the applicable warranty periods set
out below.” Limited Warranty at 2.

The Limited Warranty further provides, in relevant part:
OTHER LIMITATIONS
EXCEPT AS SET FORTH HEREIN OR ON ANY OTHER WRITTEN
EXPRESS LIMITED WARRANTIES BY SEA RAY, THERE ARE NO OTHER
WARRANTIES EITHER EXPRESS OR IMPLIED PROVIDED BY SEA RAY
ON THIS BOAT. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING IMPLIED WARRANTIES OF FITNESS AND
MERCHANTABILITY, ARE EXPRESSLY EXCLUDED. SEA RAY
FURTHER DISCLAIMS ANY LIABILITY FOR ECONOMIC LOSS ARISING
FROM CLAIMS OF PRODUCT FAILURE, NEGLIGENCE, DEFECTIVE
DESIGN, MANUFACTURING DEFECT, FAILURE TO WARN AND/OR
INSTRUCT, LACK OF SEAWORTHINESS, AND ANY OTHER THEORY OF
LIABILITY NOT EXPRESSLY COVERED UNDER THE TERMS OF THIS
LIMITED WARRANTY.

ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE IS DISCLAIMED. TO THE EXTENT THE
IMPLIED WARRANTY CANNOT BE DISCLAIMED, IT IS LIMITED TO
THE SHORTER OF ONE YEAR FROM THE DATE OF DELIVERY TO THE
FIRST RETAIL OWNER OR THE DURATION OF THE RESPECTIVE
EXPRESS LIMITED WARRANTIES STATED HEREIN. TO THE EXTENT
ALLOWED BY LAW, NEITHER SEA RAY NOR THE SELLING DEALER
SHALL HAVE ANY RESPONSIBILITY FOR LOSS OF USE OF THE BOAT,
LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS OR
CONSEQUENTIAL DAMAGES. SOME STATES DO NOT ALLOW
LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO
THE ABOVE LIMITATION MAY NOT BE APPLICABLE. SOME STATES
DO NOT ALLOW THE EXCLUSION OR LIMITATION OF, INCIDENTAL
OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR
EXCLUSIONS MAY NOT BE APPLICABLE. THIS WARRANTY GIVES
THE OWNER SPECIFIC LEGAL RIGHTS, AND THE OWNER MAY ALSO
HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR
COUNTRY TO COUNTRY.

Id. at 3 (emphasis in original).
3. The Retail Installment Contract and Security Agreement
Plaintiffs and MarineMax Northeast LLC entered into a Retail Installment Contract and
Security Agreement in connection with Plaintiffs’ purchase of the vessel (the “Retail Installment
Contract and Security Agreement”). See Compl. ¶¶ 60, 63-64; Defs.’ Ex. E (the Retail
Installment Contract and Security Agreement), ECF No. 24-5.9

With respect to this agreement, Plaintiffs allege that, although they made it clear to
MarineMax Northeast LLC that they would not accept financing for a term longer than ten years,
see Compl. ¶ 61, MarineMax Northeast LLC, “despite Plaintiffs’ express wishes, locked
Plaintiffs in to a 20 year note as opposed to a 10 year note,” id. ¶ 63.
Relevant here, the three-page Retail Installment Contract and Security Agreement itself
includes, beneath the title “TRUTH IN LENDING DISCLOSURES” and in a bolded black
box, inter alia, the applicable annual percentage rate, finance charge, amount financed, total of
payments, and total sale price. See Retail Installment Contract and Security Agreement at 1
(emphasis in original). The Retail Installment Contract and Security Agreement, in the same

bolded black box, indicates the applicable “Number of Payments” – specifically, 240 – and,
beneath the sub-header “When Payments Are Due,” text reading “Monthly payments starting –
September 18, 2014.” See id. at 1.

9 The Court considers the Retail Installment Contract and Security Agreement in connection
with deciding the instant motion because the Retail Installment Contract and Security
Agreement, which is referenced throughout the Complaint, see, e.g., Compl. ¶¶ 60, 63-64, is
incorporated by reference in – and integral to – the Complaint, and because there is no dispute
regarding the Retail Installment Contract and Security Agreement’s authenticity, accuracy, or
relevance, see Pls.’ Br. at 2, 11.
II. Procedural Background
Plaintiffs filed their Complaint on September 3, 2020. See ECF No. 1. Defendants filed
an Answer to the Complaint on October 2, 2020. See ECF No. 12. Defendants’ fully-briefed
motion for judgment on the pleadings was filed on July 12, 2021. See ECF Nos. 23-25, 27-28.

DISCUSSION
For the reasons set forth below, each of Plaintiffs’ claims is dismissed in its entirety.
I. Plaintiffs’ Breach of Contract, Breach of Express Warranty, and Breach of Implied
Warranty Claims are Dismissed
Plaintiffs assert a breach of contract claim against the MarineMax Defendants. See
Compl. ¶ 77; see also Pls.’ Br. at 4. Plaintiffs also assert claims for breach of express warranty
and breach of implied warranty against all Defendants, including the MarineMax Defendants.
See Compl. ¶¶ 44-56.
For the reasons that follow, Plaintiffs’ claims for breach of contract, breach of express
warranty, and breach of implied warranty are dismissed in their entirety.
A. Applicable Law
Under New York law,10 “a breach of contract claim requires proof of (1) an agreement,
(2) adequate performance by the plaintiff, (3) breach by the defendant, and (4) damages.”
Queens Ballpark Co., LLC v. Vysk Commc’ns, 226 F. Supp. 3d 254, 258 (S.D.N.Y. 2016)
(quoting Fischer & Mandell, LLP v. Citibank N.A., 632 F.3d 793, 799 (2d Cir. 2011)). “In New
York, ‘liability for breach of contract does not lie absent proof of a contractual relationship or

10 As the parties appear to agree, New York substantive law applies in the instant case. See
generally Pl.’s Br. (discussing New York substantive law); Defs.’ Br. (same); see also
Bonchon LLC v. LKRG Provisions & Holdings, LLC, No. 20-CV-03938, 2021 WL 5042858
at *3 n.7 (S.D.N.Y. Oct. 29, 2021) (“The parties’ briefs assume that New York law controls,
and such implied consent is sufficient to establish choice of law.” (quoting Alphonse Hotel
Corp. v. Tran, 828 F.3d 146, 152 (2d Cir. 2016))).
privity between the parties.’” Stapleton v. Barrett Crane Design & Eng’g, 725 F. App’x 28, 30
(2d Cir. 2018) (alteration accepted) (quoting Hamlet at Willow Creek Dev. Co., LLC v. Ne. Land
Dev. Corp., 878 N.Y.S.2d 97, 111 (2d Dep’t 2009)); see also Lankau v. Luxoft Holding, Inc., 266
F. Supp. 3d 666, 679 n.2 (S.D.N.Y. 2017).

“When interpreting a contract, [a court’s] ‘primary objective . . . is to give effect to the
intent of the parties as revealed by the language of their agreement.’” Chesapeake Energy Corp.
v. Bank of N.Y. Mellon Tr. Co., N.A., 773 F.3d 110, 113-14 (2d Cir. 2014) (quoting Compagnie
Financiere de CIC et de L’Union Europeenne v. Merrill Lynch, Pierce, Fenner & Smith Inc., 232
F.3d 153, 157 (2d Cir. 2000)). “When the terms of a written contract are clear and unambiguous,
the intent of the parties must be found within the four corners of the contract.” Id. (alterations
accepted) (quoting Howard v. Howard, 740 N.Y.S.2d 71, 71 (2d Dep’t 2002)). “[A] written
agreement that is complete, clear and unambiguous on its face must be enforced according to the
plain meaning of its terms.” Accelerant Partners, LLC v. Applied Fiber Holdings, LLC, No. 21-
CV-05014, 2021 WL 6113375, at *5 (S.D.N.Y. Dec. 27, 2021) (quoting Willsey v. Gjuraj, 885

N.Y.S.2d 528, 530 (2d Dep’t 2009)); see also Lockheed Martin Corp. v. Retail Holdings, N.V.,
639 F.3d 63, 69 (2d Cir. 2011) (citing South Rd. Assocs., LLC v. IBM, 826 N.E.2d 806, 809
(2005)). “If the terms of a contract are clear, courts must take care not to alter or go beyond the
express terms of the agreement, or to impose obligations on the parties that are not mandated by
the unambiguous terms of the agreement itself.” Fisher v. SD Prot. Inc., 948 F.3d 593, 606 (2d
Cir. 2020) (quotation marks omitted). “At the motion to dismiss stage, a district court may
dismiss a breach of contract claim only if the terms of the contract are unambiguous.” Edwards
v. Sequoia Fund, Inc., 938 F.3d 8, 13 (2d Cir. 2019) (quotation marks omitted).
“Under New York law, warranties can be express or implied.” Martino v. MarineMax
Ne., LLC, No. 17-CV-04708, 2018 WL 6199557, at *4 (E.D.N.Y. Nov. 28, 2018). Section 2-313
of the New York Uniform Commercial Code (“NYUCC”) governs express warranties, whereas
Sections 2-314 and 2-315 of the NYUCC create implied warranties of merchantability and

fitness for a particular purpose, respectively. See Martino, 2018 WL 6199557, at *4; see also
N.Y. U.C.C. Law §§ 2-313, 2-314, 2-315.
As to express warranties, “[a]ny affirmation of fact or promise made by the seller to the
buyer which relates to the goods and becomes part of the basis of the bargain creates an express
warranty that the goods shall conform to the affirmation or promise.” Goldemberg v. Johnson &
Johnson Consumer Cos., Inc., 8 F. Supp. 3d 467, 482 (S.D.N.Y. 2014) (quoting Avola v.
La.-Pac. Corp., 991 F. Supp. 2d 381, 391 (E.D.N.Y. 2013)); see also N.Y. U.C.C. Law
§ 2-313(1)(a). “To state a claim for breach of express warranty under New York law, a plaintiff
must allege (1) the existence of a material statement amounting to a warranty, (2) the buyer’s
reliance on this warranty as a basis for the contract with the immediate seller, (3) breach of the

warranty, and (4) injury to the buyer caused by the breach.” Goldemberg, 8 F. Supp. 3d at 482.
At least some New York State courts and district courts in this Circuit have held that New York
law does not require privity for an express warranty claim, at least in certain circumstances. See
Sitt v. Nature’s Bounty, Inc., No. 15-CV-04199, 2016 WL 5372794, at *16-17 (E.D.N.Y. Sept.
26, 2016) (citing Mahoney v. Endo Health Sols., Inc., No. 15-CV-09841, 2016 WL 3951185, at
*6-7 (S.D.N.Y. July 20, 2016); Weisblum v. Prophase Labs, Inc., 88 F. Supp. 3d 283, 295-96
(S.D.N.Y. 2015)). For example, some courts have held that “[a] buyer may bring a claim against
a manufacturer from whom he did not purchase a product directly, since an express warranty
‘may include specific representations made by a manufacturer in its sales brochures or
advertisements regarding a product upon which a purchaser relies.’” Goldemberg, 8 F. Supp. 3d
at 482 (quoting Arthur Glick Leasing, Inc. v. William J. Petzold, Inc., 858 N.Y.S.2d 405, 407 (3d
Dep’t 2008)). “However, a plaintiff complaining of breach of express warranty must ‘set forth
the terms of the warranty upon which he relied.’” Id. (quoting Parker v. Raymond Corp., 930

N.Y.S.2d 27, 29 (2d Dep’t 2011)).
As to implied warranties, “[u]nder New York law, ‘the implied warranty of
merchantability is a guarantee by the seller that its goods are fit for the intended purpose for
which they are used and that they will pass in the trade without objection.’” Sarr v. BEF Foods,
Inc., No. 18-CV-06409, 2020 WL 729883, at *8 (E.D.N.Y. Feb. 13, 2020) (alteration accepted)
(quoting Prue v. Fiber Composites, LLC, No. 11-CV-03304, 2012 WL 1314114, at *10
(E.D.N.Y. Apr. 17, 2012)). With respect to an implied warranty of fitness for a particular
purpose, “‘where the seller at the time of contracting has reason to know any particular purpose
for which the goods are required and that the buyer is relying on the seller’s skill or judgment to
select or furnish suitable goods,’ there is an implied warranty that ‘the goods shall be fit for such

purpose.’” Catalano v. BMW of N. Am., LLC, 167 F. Supp. 3d 540, 556 (S.D.N.Y. 2016)
(alteration accepted) (quoting N.Y. U.C.C. Law § 2-315). “As a general matter, in the absence
of privity, New York law does not allow implied warranty claims to proceed when there is no
claim for personal injuries.” Kyszenia v. Ricoh USA, Inc., No. 20-CV-02215, 2022 WL 326981,
at *8 (E.D.N.Y. Feb. 3, 2022); see also Sarr, 2020 WL 729883, at *8 (“When plaintiffs allegedly
suffer only financial, as opposed to personal, injuries, privity of contract between the plaintiffs
and the defendant is a necessary element of the breach of implied warranty claim.”).
The NYUCC “generally permits disclaimers of warranties that are adequately clear and
conspicuous.” Shema Kolainu-Hear Our Voices v. ProviderSoft, LLC, 832 F. Supp. 2d 194, 200
(E.D.N.Y. 2010); see also City of New York v. Bell Helicopter Textron, Inc., No. 13-CV-06848,
2015 WL 3767241, at *5 (E.D.N.Y. June 16, 2015). Section 2-316 of the NYUCC sets forth the
standard for the exclusion of implied warranties under the NYUCC. “To exclude an implied
warranty of merchantability, a contract’s disclaimer ‘must mention merchantability and in case

of a writing must be conspicuous.’” NY Drilling, Inc. v. TJM, Inc. LLC, No. 20-CV-03111, 2021
WL 5631767, at *3 (E.D.N.Y. Nov. 30, 2021) (quoting N.Y. U.C.C. Law § 2-316(2)).
“Similarly, an exclusion of the implied warranty of fitness ‘must be by a writing and
conspicuous.’” Id. (quoting N.Y. U.C.C. Law § 2-316(2)). As relevant here, “conspicuous” is
defined “in a common-sense way: it means ‘so written, displayed, or presented that a reasonable
person against which it is to operate ought to have noticed it.’” Id. (quoting N.Y. U.C.C. Law
§ 1-201(b)(10)). “Whether a term is ‘conspicuous’ or not is a decision for the court.” Id.
(quoting N.Y. U.C.C. Law § 1-201(b)(10)). Additionally, notwithstanding Section 2-316(2) of
the NYUCC, the NYUCC provides generally that, “unless the circumstances indicate otherwise,
all implied warranties are excluded by expressions like ‘as is’, ‘with all faults’ or other language

which in common understanding calls the buyer’s attention to the exclusion of warranties and
makes plain that there is no implied warranty.” See N.Y. U.C.C. Law § 2-316(3)(a).
Even where the “basic criteria” for a valid disclaimer are met, “the [NYUCC] separately
provides that a court may void such a clause if it finds it ‘to have been unconscionable at the
time it was made.’” Shema Kolainu-Hear Our Voices, 832 F. Supp. 2d at 200 (quoting N.Y.
U.C.C. Law § 2-302). “The determination of unconscionability is a matter of law for the court to
decide.” Id. (alteration accepted) (quoting Industralease Automated & Sci. Equip. Corp. v.
R.M.E. Enters., Inc., 396 N.Y.S.2d 427, 431 (2d Dep’t 1977)); see also Zam & Zam Super Mkt.,
LLC v. Ignite Payments, LLC, 736 F. App’x 274, 278 (2d Cir. 2018). “The basic test for
unconscionability, as laid out in the Official Comment to section 2–302, is ‘whether, in the light
of the general commercial background and the commercial needs of the particular trade or case,
the clauses involved are so one-sided as to be unconscionable under the circumstances existing at
the time of the making of the contract.’” Shema Kolainu-Hear Our Voices, 832 F. Supp. 2d at

200-01 (quoting N.Y. U.C.C. Law § 2-302 cmt. 1).
“To declare a contract clause unconscionable, New York courts typically require ‘a
showing that a contract is both procedurally and substantively unconscionable when made.’” Id.
at 201 (quoting Brower v. Gateway 2000, Inc., 676 N.Y.S.2d 569, 573 (1st Dep’t 1998)); see
also Haft v. Haier US Appliance Sols., Inc., No. 21-CV-00506, 2022 WL 62181, at *7 (S.D.N.Y.
Jan. 5, 2022) (“Plaintiffs must plead both procedural and substantive unconscionability.”).
“Procedural unconscionability concerns the contract formation process, while substantive
unconscionability looks to the content of the contract.” Shema Kolainu-Hear Our Voices, 832 F.
Supp. 2d at 201 (alteration accepted) (quoting Universal Leasing Servs., Inc. v. Flushing Hae
Kwan Rest., 565 N.Y.S.2d 199, 200 (2d Dep’t 1991)). “More specifically, procedural

unconscionability considers whether there has been a lack of meaningful choice to accept a
challenged provision by evaluating a number of factors, including ‘(1) the size and commercial
setting of the transaction; (2) whether there was a lack of meaningful choice by the party
claiming unconscionability; (3) the experience and education of the party claiming
unconscionability; and (4) whether there was disparity in bargaining power.’” Haft, 2022 WL
62181, at *7 (quoting Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 787 (2d Cir.
2003)). “The inquiry into substantive unconscionability involves an analysis ‘of the substance of
the bargain to determine whether the terms were unreasonably favorable to the party against
whom unconscionability is urged.’” Shema Kolainu-Hear Our Voices, 832 F. Supp. 2d at 202
(quoting Gillman v. Chase Manhattan Bank, N.A., 534 N.E.2d 824, 829 (1988)). “Procedural
and substantive unconscionability have been described as operating on a ‘sliding scale,’ meaning
that ‘the more questionable the meaningfulness of choice, the less imbalance in a contract’s
terms should be tolerated and vice versa.’” Id. (quoting State v. Wolowitz, 468 N.Y.S.2d 131,

145 (2d Dep’t 1983)).
B. Analysis
Plaintiffs’ breach of contract claim – which Plaintiffs bring against the MarineMax
Defendants – turns on the Purchase Agreement, as do Plaintiffs’ claims for breach of express
warranty and breach of implied warranty, insofar as those claims are brought against the
MarineMax Defendants. Accordingly, the Court analyzes Plaintiffs’ breach of contract claim
together with Plaintiffs’ breach of warranty claims as against the MarineMax Defendants. The
Court then analyzes Plaintiffs’ breach of warranty claims insofar as they are brought against the
remaining defendants.
1. Plaintiffs’ Breach of Contract Claim and Breach of Warranty Claims
as Against the MarineMax Defendants are Dismissed
Defendants argue that Plaintiffs’ breach of contract claim must fail as a matter of law
because the Purchase Agreement provides that the vessel was to be sold “As Is.” See Defs.’ Br.
at 6-8; Defs.’ Reply at 1-2. Similarly, Defendants argue, with respect to the MarineMax
Defendants, that “[a]ll express and implied warranties were expressly disclaimed in the Purchase
Agreement.” Defs.’ Reply at 2.

The Court concludes that, in light of the Purchase Agreement’s clear and unambiguous
terms, Plaintiffs have failed to plausibly state a breach of contract claim and have failed to
plausibly state breach of warranty claims as against the MarineMax Defendants.
The Purchase Agreement plainly provides that the vessel was sold “‘AS IS,’” with “NO
WARRANTIES ON [SELLER’S] OWN BEHALF, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE,” unless certain conditions not applicable here were met.
See Purchase Agreement at 2 (emphasis in original).11

At least one other decision in this District has interpreted this exact language – there, in a
different purchase agreement as to a boat, to which MarineMax Northeast LLC also was party –
as sufficient to defeat, at the motion to dismiss stage, breach of contract and breach of warranty
claims based on alleged “significant and substantial defects” with the boat at issue in that case.
See Martino, 2018 WL 6199557, at *1, *3-5 (relying on “As Is” provision identical to the one in
the instant action in dismissing breach of contract claim based on, inter alia, allegations that
defendants, including MarineMax Northeast LLC “fail[ed] to deliver a new boat with no defects
meeting the specifications as listed [in the applicable purchase agreement]” and “fail[ed] to cure
the defects identified [with respect to the subject boat]”). The Court reaches the same conclusion

here.
Even accepting that the vessel at issue here was defective in the manner alleged by
Plaintiffs, the Complaint does not state a plausible breach of contract claim based on the alleged
defects because, by the Purchase Agreement’s clear and unambiguous terms, Plaintiffs agreed to
accept the vessel “As Is.” See id. at *3-5; see also Fanok v. Carver Boat Corp., LLC, 576 F.
Supp. 2d 404, 413 (E.D.N.Y. 2008) (dismissing claims, including breach of contract and
warranty claims, based on allegations that defendant had delivered a “defective” yacht, because
plaintiff had effectively purchased yacht “as is”); cf. Bocre Leasing Corp. v. Gen. Motors Corp.,

11 The Court hereinafter refers to this provision as the Purchase Agreement’s “As Is” provision.
645 N.E.2d 1195, 1196-97 (1995) (dismissing tort action based on the purchase of an allegedly
defective helicopter, in which plaintiff alleged, “in sum and substance, a commercial contract
claim,” on the basis that “plaintiff chose to purchase the helicopter in ‘AS IS’ condition”).
Also in light of the Purchase Agreement’s “As Is” provision, Plaintiffs’ breach of

warranty claims as against the MarineMax Defendants are not plausibly stated.
As to any alleged breach of an express warranty on the part of the MarineMax
Defendants, the Purchase Agreement clearly and unambiguously states that the Seller – which,
again, the Court construes as referring to both of the MarineMax Defendants based on the
allegations in Plaintiffs’ Complaint – makes no warranties on its own behalf, including express
warranties. See Purchase Agreement at 2.12
As to Plaintiffs’ claim for breach of implied warranty as against the MarineMax
Defendants, the Court concludes that the Purchase Agreement meets the requirements for

12 In the Complaint, Plaintiffs allege in conclusory fashion that “[t]he vessel, its systems,
mechanisms and its parts were all subject to express warranties.” See Compl. ¶ 45. The Court
is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555). Regardless, to the extent that Plaintiffs
allege that any express warranty derives from the Purchase Agreement itself, the Court need
not – and does not – accept that allegation as true, because it is directly contradicted by the
Purchase Agreement. See SING for Serv., LLC v. DOWC Admin. Servs., LLC, No. 20-CV-
05617, 2022 WL 36478, at *11 n.14 (S.D.N.Y. Jan. 3, 2022). To the extent that Plaintiffs
contend that some prior negotiation or understanding – i.e., one outside the Purchase
Agreement’s terms – gave rise to an express warranty on the part of the MarineMax
Defendants, Plaintiffs cannot state a plausible claim on that theory, because the Purchase
Agreement is an agreement in writing to which Plaintiffs and the MarineMax Defendants
“assented as the complete and accurate integration of [their] contract.” See Alfandary v. Nikko
Asset Mgmt. Co., 337 F. Supp. 3d 343, 358 (S.D.N.Y. 2018) (quoting Garza v. Marine
Transp. Lines, Inc., 861 F.2d 23, 26 (2d Cir. 1988)); see also Purchase Agreement at 2
(providing that the Purchase Agreement “constitutes the entire agreement between the parties
and no other verbal, written or printed representations, claims or inducements are incorporated
into this Agreement, unless in writing and signed by both parties”).
exclusion of the implied warranties of merchantability and fitness for a particular purpose.13
Immediately above signature lines featuring Plaintiffs’ signatures, the Purchase Agreement, in all
capital, bolded letters, features an admonition to “SEE THE REVERSE SIDE OF THIS
AGREEMENT FOR IMPORTANT INFORMATION REGARDING LIMITATIONS OF

WARRANTIES.” See Purchase Agreement at 1 (emphasis in original). The disclaimer of
warranties itself, again in capital, bolded letters, states that the boat is being sold “‘AS IS’” and
that Defendants “MAKE[ ] NO WARRANTIES ON ITS OWN BEHALF,” and expressly
refers to the absence of implied warranties of merchantability and fitness for a particular
purpose. See id. at 2 (emphasis in original). The disclaimer is set off in its own discrete
paragraph and features its key terms – including the references to the absence of implied
warranties of merchantability and fitness for a particular purpose – in capital letters and in a
larger font size than any other text in the Purchase Agreement, making those terms distinctive.
See id.
This disclaimer is clear and conspicuous and expressly mentions the implied warranties

being disclaimed – and, of particular note, expressly mentions the implied warranty of
merchantability. See NY Drilling, Inc., 2021 WL 5631767, at *4-5 (concluding that disclaimer
of warranties was valid where disclaimer’s text was “in all capital letters and . . . clearly and
explicitly disclaim[ed] the warranties of fitness and merchantability” and where disclaimer was
“set off in its own discrete paragraph, in a font and type size that differ[ed] from the text
surrounding it”); see also N.Y. U.C.C. Law § 2-316(2). Accordingly, the Purchase Agreement

13 Although Plaintiffs appear to rest their claim for breach of implied warranty on the implied
warranty of merchantability, see, e.g., Compl. ¶¶ 51-53; Pls.’ Br. at 8, the Court, in an
abundance of caution, considers also whether Plaintiffs have plausibly stated a claim for
breach of an implied warranty of fitness for a particular purpose.
excluded any implied warranties and Plaintiffs have not stated a plausible claim for breach of
implied warranty as against the MarineMax Defendants. See Martino, 2018 WL 6199557, at *4
(interpreting the same language as effectively excluding any implied warranties); see also Shema
Kolainu-Hear Our Voices, 832 F. Supp. 2d at 200 (“The disclaimer here appears to meet all the

necessary criteria for validity under the [NYUCC]: it is in capital letters in a separate block
paragraph and specifically mentions merchantability, fitness and that the software is being
licensed ‘AS IS.’”).
Notably, Plaintiffs do not argue that the Purchase Agreement’s “As Is” provision is
ambiguous, unclear, or less than conspicuous; nor do they dispute that, if the “As Is” provision is
enforceable, it necessarily precludes their breach of contract and breach of warranty claims as to
the MarineMax Defendants. Rather, Plaintiffs argue, inter alia: (1) that the “As Is” provision is
not enforceable because that provision is, in Plaintiffs’ view, “unfair and unconscionable;” and
(2) that, despite Defendants’ argument that the vessel was sold “as is,” the MarineMax
Defendants violated an implied covenant “to act in good faith in the course of performance.”

Pls.’ Br. at 4-5. Neither of these arguments is availing.
With respect to their unconscionability argument, Plaintiffs cursorily allege in the
Complaint that they “lacked a meaningful choice with respect to the terms of the written
warranties due to, inter alia, lack of [bargaining] power.” Compl. ¶ 48. This allegation, even if
accepted as true, is insufficient to show that the Purchase Agreement’s “As Is” provision is
unconscionable, either procedurally or substantively. Plaintiffs also contend in briefing that the
Purchase Agreement was an “adhesion contract” and that they “were not able to negotiate any
terms of the agreement and were required to sign the contract as presented.” See Pls.’ Br. at 4-5.
These assertions made in briefing are conclusory and, in any event, are not properly before the
Court. See Peacock v. Suffolk Bus Corp., 100 F. Supp. 3d 225, 231 (E.D.N.Y. 2015) (“It is well-
settled that a plaintiff cannot amend his complaint by asserting new facts or theories for the first
time in opposition to a motion to dismiss.” (alterations accepted) (quotation marks omitted)).
Nevertheless, even if the Court were to accept as true Plaintiffs’ allegations in briefing on the

issue of unconscionability, those allegations still would be insufficient to demonstrate
unconscionability.
With respect to procedural unconscionability, “[e]ven a form contract that is offered on a
‘take it or leave it’ basis . . . may be valid,” and “inequality in bargaining position alone is not
sufficient.” Mumin v. Uber Techs., Inc., 239 F. Supp. 3d 507, 525 (E.D.N.Y. 2017); see also 510
E. 84th St. Corp. v. Genitrini, 924 N.Y.S.2d 309, 2011 WL 588768, at *1 (N.Y. Sup. Ct., N.Y.
Cnty. 2011) (“The fact that there is inequity of bargaining power is not sufficient to support a
conclusion that a contract is unenforceable.”). Aside from Plaintiffs’ conclusory allegation that
they lacked bargaining power, see Compl. ¶ 48 – and their related assertion that they were unable
to negotiate the terms of the Purchase Agreement, see Pls.’ Br. at 5 – Plaintiffs do not make any

allegation with respect to their experience or education, or with respect to the “size and
commercial setting of the transaction;” nor do they allege that the Purchase Agreement resulted
from “high-pressured tactics” or that the Purchase Agreement contains “fine print.” See Shema
Kolainu-Hear Our Voices, 832 F. Supp. 2d 194, 201 (E.D.N.Y. 2010); cf. Orix Fin. Servs., Inc.
v. Thunder Ridge Energy, Inc., No. 01-CV-04788, 2006 WL 587483, at *11 (S.D.N.Y. Mar. 8,
2006) (rejecting, at the summary judgment stage, unconscionability argument where the parties
claiming unconscionability had offered “no evidence concerning the factors that will support a
finding that a contract is unenforceable under New York law, such as the use of high-pressure
tactics, deceptive language, or that there was gross inequality of bargaining power in the
negotiating process”). Without any such or similar allegations, Plaintiffs have not plausibly
alleged procedural unconscionability.14
With respect to substantive unconscionability, “[d]isclaimers of warranties are
commonplace and explicitly permitted by the [NYUCC].” Shema Kolainu-Hear Our Voices,

832 F. Supp. 2d at 202 (citing N.Y. U.C.C. Law § 2-316). Here, Plaintiffs have offered no
reason to conclude that the Purchase Agreement’s “As Is” provision – which, as set forth above,
permissibly disclaims the relevant warranties – was “so grossly unreasonable or unconscionable
in light of the mores and business practices of the time and place [at which the agreement was
negotiated] as to be unenforceable according to its literal terms.” Id. (quoting Gillman, 534
N.E.2d at 828); see also id. at 202-03 (“[N]umerous New York decisions have found disclaimers
of warranties not to be unconscionable absent procedural flaws in the contractual process.”).
Accordingly, Plaintiffs have not plausibly alleged substantive unconscionability.
As to Plaintiffs’ argument concerning the covenant of good faith and fair dealing, the
covenant “cannot be construed so broadly as effectively to nullify other express terms of a

contract, or to create independent contractual rights.” Haft, 2022 WL 62181, at *12 (quoting
Consol. Edison, Inc. v. Ne. Utilities, 426 F.3d 524, 529 (2d Cir. 2005)). Thus, Plaintiffs “cannot
invoke the covenant to erase or otherwise vary a disclaimer of warranties.” Id. (alteration

14 Plaintiffs’ assertion that the Purchase Agreement is an adhesion contract, see Pl.’s Br. at 4,
also is unavailing. “Pursuant to New York law, ‘adhesion is found where the party seeking to
enforce the contract used high pressure tactics or deceptive language in the contract and where
there is inequality of bargaining power between the parties. In addition, it must be shown that
the contract inflicts substantive unfairness on the weaker party.’” SOL Grp. Mktg. Co. v.
Lines, No. 14-CV-09929, 2016 WL 205444, at *6 (S.D.N.Y. Jan. 15, 2016) (alteration
accepted) (quoting Milgrim v. Backroads, Inc., 142 F. Supp. 2d 471, 475 (S.D.N.Y. 2001),
aff’d, 91 F. App’x 702 (2d Cir. 2002)). Plaintiffs make no allegation as to the use of high-
pressure tactics or deceptive language in the Purchase Agreement, and Plaintiffs have not
plausibly alleged substantive unfairness.
accepted) (quoting Roberts v. Weight Watchers Int’l, Inc., 217 F. Supp. 3d 742, 752 (S.D.N.Y.
2016), aff’d, 712 F. App’x 57 (2d Cir. 2017)). The Purchase Agreement permissibly disclaimed
the relevant warranties, and Plaintiffs “may not invoke the covenant of good faith and fair
dealing to create obligations inconsistent with those . . . applicable to the warranties.” See id.

In sum, Plaintiffs have failed to state a plausible breach of contract claim, and have
similarly failed to state a plausible breach of express warranty claim or plausible breach of
implied warranty claim as against the MarineMax Defendants. Accordingly, Plaintiffs’ breach of
contract claim is dismissed, and Plaintiffs’ breach of express warranty and breach of implied
warranty claims as against the MarineMax Defendants are dismissed.
2. Plaintiffs’ Breach of Warranty Claims as Against the Remaining
Defendants are Dismissed
Plaintiffs’ breach of express warranty and breach of implied warranty claims insofar as
they are alleged against the remaining defendants – i.e., the Brunswick Defendants and Mercury
Marine – also are insufficiently pled.
Beginning with Plaintiffs’ breach of express warranty cause of action, Plaintiffs submit in
briefing that they “received written express warranties from Brunswick and Mercury Marine.”
Pls.’ Br. at 8. As to Mercury Marine, Plaintiffs have not identified an express warranty with
respect to which Mercury Marine might be held liable. The Complaint contains no allegation
regarding a written warranty from Mercury Marine, and no party has submitted such a warranty
in its briefing on the instant motion. Nor have Plaintiffs alleged the existence of any “specific

representations” made by Mercury Marine “in its sales brochures or advertisements” regarding
the vessel or alleged that they relied upon such a representation. See Goldemberg, 8 F. Supp. 3d
at 482 (quotation marks omitted). Because Plaintiffs – in connection with their breach of express
warranty claim as against Mercury Marine – have not “set forth the terms of the warranty upon
which [they] relied,” id. (quoting Parker, 930 N.Y.S.2d at 29), Plaintiffs have failed to state a
plausible breach of express warranty claim as against Mercury Marine.
Turning to Plaintiffs’ breach of express warranty claim as against the Brunswick
Defendants, Plaintiffs appear to rest this claim on the Limited Warranty, see Pls.’ Br. at 6, which

Defendants appear to concede qualifies as a limited express warranty, see Defs.’ Br. at 13.
Defendants dispute, though, whether the complained-of defects fall within the Limited
Warranty’s scope, and – relatedly – whether Plaintiffs have adequately alleged the existence of
any defect at all. See Defs.’ Br. at 8-10.
As relevant here, the Limited Warranty covers “any defects in material or workmanship
in the Sea Ray Boat that are reported within the applicable warranty periods.” Limited Warranty
at 2. Importantly, “a warranty that protects against defects in materials or workmanship” – as the
Limited Warranty clearly and unambiguously does – “covers manufacturing defects, but not
design defects.” Catalano, 167 F. Supp. 3d at 554; see also Haag v. Hyundai Motor Am., 294 F.
Supp. 3d 102, 105 (W.D.N.Y. 2018); Garcia v. Chrysler Grp. LLC, 127 F. Supp. 3d 212, 226

(S.D.N.Y. 2015); Miller v. Hyundai Motor Am., No. 15-CV-04722, 2017 WL 4382339, at *4
(S.D.N.Y. Sept. 29, 2017). “Under New York law, ‘a manufacturing defect results when a
mistake in manufacturing renders a product that is ordinarily safe dangerous so that it causes
harm’ and ‘a design defect results when the product as designed is unreasonably dangerous for
its intended use.’” Catalano, 167 F. Supp. 3d at 554 (alterations accepted) (quoting McCarthy v.
Olin Corp., 119 F.3d 148, 154-55 (2d Cir. 1997)). “Because a manufacturing defect exists when
the unit in question deviates in quality and other performance standards from all of the other
identical units, a [manufacturing defect] claim devoid of allegations that a particular unit differed
when compared to others in the same product line will be dismissed.” Orange Transp. Servs.,
Inc. v. Volvo Grp. N. Am., LLC, 450 F. Supp. 3d 311, 318 (W.D.N.Y. 2020) (quoting Guariglia
v. Procter & Gamble Co., No. 15-CV-04307, 2018 WL 1335356, at *5 (E.D.N.Y. Mar. 14,
2018)). Although a plaintiff “need not plead specific facts about the manufacturing process,
improper workmanship, or use of defective materials at the motion to dismiss stage if doing so

would require technical or scientific knowledge about the inner workings of the product,” the
plaintiff “must do more than make ‘offhand references to manufacturing defects.’” Id. at 319
(alteration accepted) (quoting Guariglia, 2018 WL 1335356, at *5); see also Haag, 294 F. Supp.
3d at 105 (“[W]here a plaintiff makes only ‘conclusory references to manufacturing defects,’ and
instead relies on allegations and/or evidence that the claimed defects are common to an entire
class of vehicles based on their design, rather than the result of an error in the manufacturing
process, the plaintiff’s claim is more appropriately characterized as a design defect claim, and
plaintiff cannot prevail on an express warranty claim concerning materials and workmanship.”
(quoting Catalano, 167 F. Supp. 3d at 555)).
Plaintiffs’ Complaint does not clear that bar. Although the Complaint alleges in

conclusory fashion that “many of the issue[s] experienced by plaintiff[s] constituted latent
manufacturer’s defects,” see Compl. ¶ 24 (emphasis added), the Complaint’s factual allegations
consistently depict defects “more appropriately characterized as . . . design defect[s],” see
Orange Transp. Servs., Inc., 450 F. Supp. 3d at 318 (quotation marks omitted). Importantly,
Plaintiffs do not allege that the “multitude of issues,” see Compl. ¶ 18, that they allegedly
experienced with the vessel were specific to the vessel that they purchased (or to a specific
subset of vessels including the one that they purchased). See Orange Transp. Servs., Inc., 450 F.
Supp. 3d at 320 (framing the relevant inquiry as “whether plaintiff has alleged specific
deviations from design standards for particular units rather than flaws consistent across relevant
units”); see also Guariglia, 2018 WL 1335356, at *5 (dismissing manufacturing defect claims
based on allegedly defective Tide Pods, where plaintiffs “failed to allege how the units they
purchased were manufactured differently from other Tide Pods”). Indeed, the Complaint
indicates that many of these issues were “inherent to the vessel and its mechanisms and systems,

including the engines and cooling system,” see Compl. ¶ 24, suggesting that the complained-of
defects “are common to an entire class of vehicles based on their design,” Orange Transp.
Servs., Inc., 450 F. Supp. 3d at 320. Because the Complaint makes only an offhand reference to
manufacturing defects, Plaintiffs have not plausibly alleged a manufacturing defect but, rather,
have alleged – at most – the existence of a design defect or defects. Because design defects,
however, are not covered by the Limited Warranty, Plaintiffs have failed to state a plausible
breach of express warranty claim as against the Brunswick Defendants.
As to Plaintiffs’ breach of implied warranty cause of action, Plaintiffs have not stated a
plausible claim for breach of implied warranty against the Brunswick Defendants or Mercury
Marine because Plaintiffs have not alleged facts sufficient to show that they were in privity with

any of these defendants and there is no personal injury alleged. See Kyszenia, 2022 WL 326981,
at *8. As to the Brunswick Defendants, in particular, the Court notes that the Limited Warranty
“does not create privity for the purposes of a claim for breach of an implied warranty.” Id. at *9
(quotation marks omitted); see also Cummings v. FCA US LLC, 401 F. Supp. 3d 288, 310-11
(N.D.N.Y. 2019).15

15 Plaintiffs cite to Greenberg v. Lorenz, 9 N.Y.2d 195 (1961), to argue that “some courts have
recognized a narrow exception to the privity requirement between sellers and consumers.”
Pls.’ Br. at 8. The Greenberg decision – in which the New York State Court of Appeals
recognized an exception to the privity requirement to permit a child to recover for damages
she sustained eating canned salmon containing sharp metal, even though it was the child’s
father who had purchased the can of salmon, see Greenberg, 9 N.Y.2d at 198-200 – is plainly
inapposite here.
In sum, Plaintiffs have failed to state a plausible breach of express warranty claim or
plausible breach of implied warranty claim as against the Brunswick Defendants or Mercury
Marine. Accordingly, Plaintiffs’ breach of express warranty and breach of implied warranty
claims as against the Brunswick Defendants and Mercury Marine are dismissed. Because, as set

forth above, Plaintiffs also have failed to state a claim for breach of express warranty or breach
of implied warranty as to the MarineMax Defendants, Plaintiffs’ breach of express warranty and
breach of implied warranty claims are dismissed in their entirety.
II. Plaintiffs’ Magnuson-Moss Warranty Act Claim is Dismissed
Plaintiffs assert a claim against all Defendants under the Magnuson-Moss Warranty Act
(“MMWA”), 15 U.S.C. § 2301 et seq., based on the same breach of warranty claims addressed
above. See Compl. ¶¶ 32-43.
The MMWA provides, in relevant part, that “a consumer who is damaged by the failure
of a supplier, warrantor, or service contractor to comply with any obligation under this chapter,
or under a written warranty, implied warranty, or service contract, may bring suit for damages
and other legal and equitable relief.” 15 U.S.C. § 2310(d)(1). As relevant here – and as

Plaintiffs appear to acknowledge, see Pls.’ Br. at 8-9 – “[t]o state a claim under the MMWA,
plaintiffs must adequately plead a cause of action for breach of written or implied warranty under
state law,” see Garcia, 127 F. Supp. 3d at 232; see also Cali v. Chrysler Grp. LLC, No.
10-CV-07606, 2011 WL 383952, at *4 (S.D.N.Y. Jan. 18, 2011) (“[C]laims under the
Magnuson-Moss Act stand or fall with the express and implied warranty claims under state law.”
(quoting Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022-23 (9th Cir. 2008))), aff’d,
426 F. App’x 38 (2d Cir. 2011).
Because, here, Plaintiffs’ claims for breach of express warranty and breach of implied
warranty are insufficiently pled, Plaintiffs also have failed to state a plausible claim under the
MMWA. See, e.g., Warren v. Whole Foods Mkt. Grp., Inc., No. 19-CV-06448, 2021 WL
5759702, at *8 (E.D.N.Y. Dec. 3, 2021); Cummings, 401 F. Supp. 3d at 315. Plaintiffs’ MMWA
claim therefore is dismissed in its entirety.
III. Plaintiffs’ Truth in Lending Act Claim is Dismissed
Plaintiffs assert a claim under the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et

seq. against MarineMax Northeast LLC, based on a financing agreement entered into between
Plaintiffs and MarineMax Northeast LLC, memorialized in the Retail Installment Contract and
Security Agreement. See Compl. ¶¶ 57-65; see generally Retail Installment Contract and
Security Agreement. Specifically, Plaintiffs allege that, although they made it clear to
MarineMax Northeast LLC that they would not accept financing for a term of longer than ten
years, see Compl. ¶ 61, MarineMax Northeast LLC, “despite Plaintiffs’ express wishes, locked
Plaintiffs in to a 20 year note as opposed to a 10 year note,” id. ¶ 63. Plaintiffs allege that
MarineMax Northeast LLC “failed to adequately disclose the terms of the financing to Plaintiffs
as required by law.” Id. ¶ 64.
Congress enacted TILA “to ‘assure a meaningful disclosure of credit terms’ in consumer

credit transactions.” Gorbaty v. Wells Fargo Bank, N.A., No. 10-CV-03291, 2014 WL 4742509,
at *11 (E.D.N.Y. Sept. 23, 2014) (quoting 15 U.S.C. § 1601(a)). “In general, TILA requires
creditors to provide borrowers clear, conspicuous, and accurate disclosures of the loan terms and
other material information.” Midouin v. Downey Sav. & Loan Ass’n, F.A., 834 F. Supp. 2d 95,
102 (E.D.N.Y. 2011) (citing 15 U.S.C. § 1632); see also Beach v. Ocwen Fed. Bank, 523 U.S.
410, 412 (1998). “The required material disclosures include, but are not limited to, the amount
financed, the annual percentage rate, the finance charge, the total of payments, and the payment
schedule.” Henry v. Flagstar Bank, FSB, No. 16-CV-01504, 2019 WL 1471267, at *5
(E.D.N.Y. Mar. 31, 2019) (citing 12 C.F.R. § 226.18).
Here, Plaintiffs have not pled factual allegations sufficient to show that MarineMax
Northeast LLC failed to provide them with clear, conspicuous, and accurate disclosures of the

terms of the financing agreement.
As an initial matter, the Court notes that the three-page Retail Installment Contract and
Security Agreement – in a bolded box beneath the bolded, all capital title “TRUTH IN
LENDING DISCLOSURES” – sets forth the relevant annual percentage rate, finance charge,
amount financed, total of payments, and total sales price. See Retail Installment Contract and
Security Agreement at 1 (emphasis in original). The Retail Installment Contract and Security
Agreement, in the same bolded box and beneath the same title, indicates that the “Number of
Payments” is 240 and that the “Amount of Payments” is $1,058.05. See id. The Retail
Installment Contract and Security Agreement further includes, in the same bolded box and
beneath the sub-header “When Payments Are Due,” text reading “Monthly payments starting –

September 18, 2014.” See id. Plaintiffs make no allegation, nor raise any argument in briefing,
indicating how these disclosures might be insufficiently clear or conspicuous. With no such
allegation or argument before the Court, the Court concludes that the relevant disclosures –
including the disclosure indicating that payments were to be made monthly in 240 (i.e., twenty
years’ worth of) installments – are sufficiently clear and conspicuous to satisfy TILA’s
requirements.
Rather than contending that the Retail Installment Contract and Security Agreement’s
disclosures are unclear or inconspicuous, Plaintiffs allege only that the Retail Installment
Contract and Security Agreement failed to capture their “express wishes” to be granted a
10-year, rather than 20-year, note. See Compl. ¶¶ 61-63.16 Plaintiffs’ allegations on this issue
are insufficient to state a plausible TILA claim. Although the Complaint vaguely refers to a “10
year note which had been promised to,” see Compl. ¶ 63, Plaintiffs do not make any factual
allegations about this alleged promise: Plaintiffs do not allege that it was MarineMax Northeast

LLC who made this promise; nor do Plaintiffs make any allegation as to where, when, or how
this promise was made.
In sum, Plaintiffs have failed to state a plausible TILA claim. Plaintiffs’ TILA claim
therefore is dismissed in its entirety.
IV. Plaintiffs’ Claim under New York General Business Law § 349 is Dismissed
Plaintiffs assert a claim under New York General Business Law § 349 (“Section 349”)
against all Defendants, see Compl. ¶¶ 66-70, specifically on the basis that “Defendants,
individually and in concert, engaged in unfair and deceptive trade practices . . . by inter alia,
misrepresenting to Plaintiffs that the subject vessel was fit for its ordinary an[d] intended use;
that the subject vessel was in merchantable condition free from any known or latent defects; and
that the warranties covering the subject vessel would be honored,” see id. ¶ 68.

“Section 349 is ‘directed at wrongs against the consuming public,’ . . . and was enacted to
protect consumers from sellers’ deceptive practices.” Llewellyn v. Asset Acceptance, LLC, No.
14-CV-00411, 2015 WL 6503893, at *8 (S.D.N.Y. Oct. 26, 2015) (citing Oswego Laborers’
Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 24-25 (1995)), aff’d, 669
F. App’x 66 (2d Cir. 2016). To assert a prima facie case under Section 349, “a plaintiff must

16 The Court need not – and does not – accept as true Plaintiffs’ self-serving assertions made in
briefing that “they were hurried in to signing the financing documents along with the
underling [sic] purchase documents with no explanation or discussion of the terms” and that
some of the financing documents’ terms “may have been in blank contrary to the provisions of
the TILA,” see Pls.’ Br. at 11 (emphasis added). See Peacock, 100 F. Supp. 3d at 231.
demonstrate that (1) the defendant’s deceptive acts were directed at consumers, (2) the acts are
misleading in a material way, and (3) the plaintiff has been injured as a result.” Id. (quoting
Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000)). Although a plaintiff “is not required
to show that the defendant committed the complained-of acts repeatedly – either to the same

plaintiff or to other consumers,” the plaintiff “must demonstrate that the acts or practices have a
broader impact on consumers at large.” Id. (quotation marks omitted). “‘Private contract
disputes, unique to the parties’ and ‘single shot transactions’ fall outside of the statute.” Id.
(alteration accepted) (quoting Oswego Laborers’ Local 214 Pension Fund, 85 N.Y.2d at 25-26).
Here, Plaintiffs have not alleged that Defendants’ allegedly unfair and deceptive trade
practices were directed at or had an impact on any consumer other than Plaintiffs themselves.
See, e.g., Compl. ¶ 68 (alleging that Defendants “engaged in unfair and deceptive trade
practices,” inter alia, by making misrepresentations to Plaintiffs); see also, e.g., id. ¶ 70 (“As a
direct result of Defendants’ unfair and deceptive trade practices . . . Plaintiffs have suffered
damages . . . .” (emphasis added)). Although Plaintiffs assert in briefing that “[m]illions of

Americans participate in recreational boating each year and recreational boating is a multi-
billion-dollar industry” and that “[i]t is self-evident that the purchase of recreational boats is
consumer-oriented conduct,” see Pls.’ Br. at 9, these general, conclusory assertions – even if the
Court were to consider them in resolving the instant motion and accept them as true – are
insufficient to state a plausible Section 349 claim, as they do not bear on how specifically
Defendants’ alleged conduct had a broader impact on consumers at large. See Llewellyn, 2015
WL 6503893, at *8.
Accordingly, Plaintiffs have failed to state a plausible Section 349 claim. Plaintiffs’
Section 349 claim therefore is dismissed in its entirety.
V. Plaintiffs’ Claim under New York General Business Law § 198-D is Dismissed
Plaintiffs purport to assert a claim against all Defendants under New York General
Business Law § 198-D – or New York’s “vessel lemon law.” See Compl. ¶¶ 71-75. Plaintiffs
cannot state a claim under New York’s vessel lemon law, however, because no such law has
been enacted. Although a bill amending New York General Business Law to include two new

sections – specifically, proposed sections 198-d and 198-e – to “enact[] the vessel lemon law to
protect consumers purchasing or leasing boats” has been introduced in the New York State
Assembly, that bill has not been enacted. See S. Assemb. 6058, 2019 S. Assemb., 242nd Sess.
(N.Y. 2019) (indicating that, on February 26, 2019, the bill was “read once and referred to the
Committee on Consumer Affairs and Protection” but revealing no further action taken on the
bill); see also generally N.Y. Gen. Bus. Law § 198. Accordingly, Plaintiffs’ claim purportedly
brought under New York General Business Law § 198-D is dismissed.17
VI. Plaintiffs are Afforded an Opportunity to Amend
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that “[t]he court should
freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Leave to

amend may be denied for good reason, including futility, bad faith, undue delay, or undue
prejudice to the opposing party.” Kim v. Kimm, 884 F.3d 98, 105 (2d Cir. 2018) (quotation
marks omitted); accord Adlife Mktg. & Commc’ns Co. v. Best Yet Mkt., Inc., No. 17-CV-02978,

17 Because the Court dismisses Plaintiffs’ claim on the ground set forth above, the Court need
not – and does not – consider Defendants’ argument that New York General Business Law
§ 198-D does not apply retroactively. See Defs.’ Br. at 19-21. The Court notes, however, that
Plaintiffs rest their claim on Defendants’ alleged failure and/or refusal “to conform the subject
vessel to all applicable warranties as required by law, thereby gravely diminishing the value of
the subject vessel and causing Plaintiffs to suffer monetary damages.” Compl. ¶ 74. As set
forth above, Plaintiffs have not plausibly alleged that any of Defendants breached an
applicable warranty.
2018 WL 4568801, at *1 (E.D.N.Y. Sept. 24, 2018). “Leave to amend is futile if the amended
complaint would be subject to dismissal for failure to state a complaint upon which relief may be
granted and therefore could not survive a [Rule] 12(b)(6) motion to dismiss.” Doyle v. United
Airlines, Inc., 914 F. Supp. 2d 325, 333 (E.D.N.Y. 2012) (quotation marks omitted). The

decision whether to grant leave to amend “rests within the sound discretion of the district court.”
Adlife Mktg. & Commc’ns Co., 2018 WL 4568801, at *1 (citing Aetna Cas. & Sur. Co. v. Aniero
Concrete Co., 404 F.3d 566, 603-04 (2d Cir. 2005)).
Notwithstanding Defendants’ position on amendment, see Defs.’ Reply at 10, the Court
affords Plaintiffs an opportunity to amend. The Complaint before the Court is the first one filed
in this action, and the Court cannot conclude at this juncture that amendment would be futile.
VII. Defendants’ Request for Costs and Attorney’s Fees is Denied
Citing Clause 9 of the Purchase Agreement’s “Additional Terms and Conditions,”
Defendants seek to be awarded costs and attorney’s fees. See Defs.’ Br. at 21-22; see also Defs.’
Reply at 9-10. Given the cursory nature of the request and the absence of documentation
submitted in support of the request, the request is denied without prejudice. See Martino, 2018

WL 6199557, at *7.
CONCLUSION
For the reasons set forth above, Defendants’ motion for judgment on the pleadings, ECF
No. 23, is GRANTED, and each of Plaintiffs’ claims is dismissed in its entirety, without
prejudice.
Plaintiffs are afforded the opportunity to file an amended complaint that cures the
deficiencies set forth herein, by April 11, 2022. Failure to file an amended complaint by that
date shall constitute a waiver of the right to amend granted herein. In the event of such waiver,
the claims dismissed without prejudice herein shall be dismissed with prejudice.
SO ORDERED.
/s/ Diane Gujarati __
DIANE GUJARATI
United States District Judge

Dated: March 10, 2022
Brooklyn, New York

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307616. Public record. Not legal advice.