Donadio v. Bayer HealthCare LLC

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_____________________________________

PATRICA DONADIO, individually and on

behalf of all others similarly situated,

DECISION AND ORDER

Plaintiff,

6:22-CV-06521 EAW

v.

BAYER HEALTHCARE LLC,

Defendant.

_____________________________________

INTRODUCTION

Plaintiff Patricia Donadio (“Plaintiff”) brings this putative class action against

defendant Bayer HealthCare LLC (“Defendant”), alleging that it has deceptively marketed

Alka-Setzer Plus brand nighttime “Severe Cold & Flu” mix-in powder packets. (Dkt. 17).

Plaintiff alleges that the phrase “Honey Lemon Zest,” accompanied by images of a lemon

wedge and a honey dipper, creates the misleading impression that the medicine contains

“honey and lemon ingredients beyond a de minimis amount.” (Dkt. 17 at ¶ 32). Based on

these allegations, Plaintiff asserts claims for: (1) violation of New York General Business

Law (“GBL”) §§ 349 and 350; (2) violation of “[t]he Consumer Fraud Acts” of the states

of Kansas, New Mexico, Utah, Idaho, North Dakota, West Virginia, Montana, Mississippi,

and Arkansas; (3) breaches of express warranty, the implied warranty of

merchantability/fitness for a particular purpose, and the Magnuson Moss Warrant Act, 15

U.S.C. §§ 2301 et seq.; and (4) fraud. (Id. at ¶¶ 40, 47-67).

Defendant has moved to dismiss Plaintiff’s amended complaint. (Dkt. 22). For the

reasons that follow, Defendant’s motion is granted.

FACTUAL BACKGROUND

Defendant manufactures and sells Alka-Setzer Plus brand nighttime mix-in powder

packets for relief of “Severe Cold & Flu” (the “Product”). (Dkt. 17 at ¶ 1). The Product

comes in a package with the phrase “Honey Lemon Zest” on the front, accompanied by

images of a lemon wedge and a honey dipper. (Id.). The front of the package also contains

a list of active ingredients, in a different area, and on a different colored background. (Id.).

The active ingredients listed on the front of the package are acetaminophen, doxylamine

succinate, phenylephrine hydrochloride, and dextromethorphan hydrobromide. (Id.).

“[T]he full active and inactive ingredient lists on the reverse side of the packaging reveal

the absence of honey and any lemon ingredients.” (Id. at ¶ 16). Plaintiff alleges that:

Notwithstanding the front label disclosure of active ingredients, the

Product’s front label emphasis on honey and lemon through the wedge of

fresh lemon and dripping honey dipper, described as ‘Honey Lemon Zest’

next to a cup of steaming tea creates an impression of value on honey and

lemon greater than their true functional role in the formulation, because these

are inactive ingredients and present in de minimis amounts.

(Id. at ¶ 13 (quotation and alteration omitted)). “Other cold and cough products that do not

contain honey and lemon ingredients may contain pictures of a honey dipper and lemon

wedge, but disclose on their front labels this only means they have ‘Honey Lemon

Flavors.’” (Id. at ¶ 12).

PROCEDURAL BACKGROUND

Plaintiff filed her original complaint on November 21, 2022. (Dkt. 1). Defendant

moved to dismiss the original complaint (Dkt. 13), and the Court afforded Plaintiff an

opportunity to file an amended complaint “curing the alleged defects” (Dkt. 15). Plaintiff

thereafter filed the amended complaint, which is the operative pleading. (Dkt. 17).

Defendant filed the instant motion seeking dismissal of the amended complaint (Dkt. 22),

which Plaintiff has opposed (Dkt. 23). Briefing was completed on July 12, 2023, when

Defendant filed a reply. (Dkt. 24).

DISCUSSION

I. Legal Standard—Rule 12(b)(6)

“In considering a motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6), a district court may consider the facts alleged in the complaint, documents

attached to the complaint as exhibits, and documents incorporated by reference in the

complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court

should consider the motion by “accepting all factual allegations as true and drawing all

reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund

v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a claimant

must set forth “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 has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542,

546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal

quotations and citations omitted). “To state a plausible claim, the complaint’s ‘[f]actual

allegations must be enough to raise a right to relief above the speculative level.’” Nielsen

v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at

555).

II. Plaintiff’s Claims

As noted above, Plaintiff’s amended complaint contains the following claims:

(1) violation of GBL §§ 349 and 350; (2) violation of “[t]he Consumer Fraud Acts” of the

states of Kansas, New Mexico, Utah, Idaho, North Dakota, West Virginia, Montana,

Mississippi, and Arkansas; (3) breaches of express warranty, the implied warranty of

merchantability/fitness for a particular purpose, and the Magnuson Moss Warranty Act;

and (4) fraud. (Dkt. 17 at ¶¶ 40, 47-67). For the reasons set forth below, the Court finds

that none of these claims are plausibly alleged.

A. GBL §§ 349 and 350 Claims

Plaintiff alleges that Defendant has violated §§ 349 and 350 of the GBL. (Dkt. 17

at ¶¶ 47-50). As another court in this Circuit has explained:

Section 349 of the New York General Business Law declares unlawful

“deceptive acts or practices in the conduct of any business, trade or

commerce or in the furnishing of any service.” Section 350 prohibits “false

advertising in the conduct of any business, trade, or commerce or in the

furnishing of any service.” Sections 349 and 350 are both aimed at conduct

that is deceptive—i.e., conduct likely to mislead a reasonable consumer

acting reasonably under the circumstances. The only difference between the

two is that Section 350 more narrowly targets deceptive or misleading

advertisements, while Section 349 polices a wider range of business

practices.

Colpitts v. Blue Diamond Growers, 527 F. Supp. 3d 562, 576 (S.D.N.Y. 2021) (quotations,

citations, and alterations omitted).

“To state a claim for false advertising or deceptive business practices under New

York . . . law, a plaintiff must plausibly allege that the deceptive conduct was likely to

mislead a reasonable consumer acting reasonably under the circumstances.” Mantikas v.

Kellogg Co., 910 F.3d 633, 636 (2d Cir. 2018) (quotation omitted). It is “well settled that

a court may determine as a matter of law that an allegedly deceptive advertisement would

not have misled a reasonable consumer” under appropriate circumstances. Fink v. Time

Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013). The reasonable consumer inquiry is an

objective one, and “in determining whether a reasonable consumer would have been misled

by a particular advertisement, context is crucial.” Id. at 742. “To survive a motion to

dismiss, a plaintiff must do more than plausibly allege that a label might conceivably be

misunderstood by some few consumers.” Dwyer v. Allbirds, Inc., 598 F. Supp. 3d 137,

149 (S.D.N.Y. 2022).

Defendant argues that no reasonable consumer could conclude from the packaging

that the Product contains honey and lemon as ingredients beyond a de minimis amount.

(Dkt. 22-3 at 16). Instead, Defendant argues, “[a] reasonable consumer interested in

purchasing medicine and looking at the active ingredients on the front of the product

package—acetaminophen, doxylamine succinate, phenylephrine HCl, and

dextromethorphan HBr—will conclude that ‘Honey Lemon Zest’ reflects to the medicine’s

flavor, not its ingredients.” (Id.). The Court agrees.

“A reasonable consumer . . . does not lack common sense and is not assumed to be

the least sophisticated consumer.” Lisa Coppola, LLC v. Higbee, No. 1:19-CV-00678,

2020 WL 1154749, at *8 (W.D.N.Y. Mar. 10, 2020). In this case, a reasonable consumer

would not understand the phrase “Honey Lemon Zest” and pictures of a lemon wedge and

a honey dipper, on a visually and spatially distinct section of the package from the active

ingredient list, to indicate that honey or lemon are present in the medication in non de

minimis amounts. Instead, a reasonable consumer would understand that the phrase

“Honey Lemon Zest”—which is not itself the name of an ingredient found in nature—

refers to the flavor of the medication.

“Courts typically find misleading representations about ingredients when the

product label explicitly asserts that it is made with a specific ingredient or specifies the

quantity of an ingredient when the ingredient is not predominant in the Product.” Brown

v. Kellogg Sales Co., No. 1:20-CV-7283-ALC, 2022 WL 992627, at *4 (S.D.N.Y. Mar. 31,

2022). A reasonable consumer would observe that the packaging at issue in this case does

not state the Product is “made with” or “made from” honey, lemon, or lemon zest. See,

e.g., Angeles v. Nestle USA, Inc., 632 F. Supp. 3d 309, 315-16 (S.D.N.Y. 2022)

(considering bottle of sparkling water where “the bottle includes the words ‘Lemon &

Lemon Zest,’ drawings of ‘full and cut lemons, lemon peels and leaves from the lemon

plant,’ and is ‘in a bottle covered in yellow cellophane’” and concluding that “the label’s

use of the phrase ‘Lemon & Lemon Zest’ merely represents that the Product is lemon

flavored. The Product does not use language such as ‘made with lemon,’ ‘made with lemon

zest,’ or any other similar message that would convey to a reasonable consumer that the

Product includes those ingredients”); Warren v. Stop & Shop Supermarket, LLC, 592 F.

Supp. 3d 268, 278 (S.D.N.Y. 2022) (reasonable consumer would not understand “honey

graham crackers” with a picture of a honey dipper to convey that graham crackers’ honey

flavor was derived “mostly or exclusively from honey,” in part because “the Product’s

packaging does not use language such as ‘made with honey’ or ‘made with real honey,’ or

anything similar”); Cruz v. D.F. Stauffer Biscuit Co., No. 20 CIV 2402 PGG JLC, 2022

WL 4592616, at *5 (S.D.N.Y. Sept. 29, 2022) (finding that reasonable consumer would

not expect “lemon snap” cookies with a picture of a lemon on the label to be flavored

predominately or exclusively from real lemons, where package did not say “made with

lemons” or “made from lemons”).

A reasonable consumer would further be informed by the fact that the Product’s

package states “Honey Lemon Zest,” rather than “honey and lemon” or “honey and lemon

zest.” The use of “Honey Lemon Zest” as a phrase—or even title—is a clear indication

that it refers to the flavor of the product, and not to individual ingredients. See Warren v.

Coca-Cola Co., 670 F. Supp. 3d 72, 82 (S.D.N.Y. 2023) (finding that the phrase “Margarita

Hard Seltzer” did not misleadingly suggest that the product was “a cocktail containing

tequila” because “the Product’s label uses ‘Margarita’ as a modifier of the term ‘hard

seltzer’”). This is particularly so because “lemon” and “honey” are both words that “can

be used and commonly understood to refer to a product’s scent or flavor” rather than to

“promise the inclusion of any particular ingredient.” Davis v. Pur Co. (USA), Inc., No. 22-

CV-6430L, 2023 WL 3024407, at *4 (W.D.N.Y. Apr. 20, 2023) (finding that “a reasonable

consumer, acting reasonably under the circumstances, would not be misled by the Product

label’s use of the word ‘peppermint,’ into believing that the Product’s flavor was derived

solely from peppermint components such as peppermint oil or peppermint extract”); see

also Brown, 2022 WL 992627, at *4 (finding that description of Pop-Tarts as “Frosted

Strawberry,” with a picture of a halved strawberry, was not misleading because

“strawberries are a common food flavor, whether artificial or otherwise, especially in

processed snack foods like Pop-Tarts.”); Dashnau v. Unilever Mfg. (US), Inc., 529 F. Supp.

3d 235, 243 (S.D.N.Y. 2021) (collecting cases holding that “the word ‘vanilla’ on a

product’s front label makes a representation about the flavor of the product, but does not

make a representation about the source of the product’s vanilla flavor” (emphases in

original)).

Additionally, as Plaintiff acknowledges in the amended complaint, the active and

inactive ingredient lists on the package disclose that the Product contains “flavors,” but not

a more than de minimis amount of honey or lemon. (Dkt. 17 at ¶ 16). “Those interested

in the actual ingredients can read the list[.]” Steele v. Wegmans Food Markets, Inc., 472

F. Supp. 3d 47, 50 (S.D.N.Y. 2020); see also Cruz, 2022 WL 4592616, at *8 (“[T]he front

panel does not state or suggest that the Cookies are free of artificial flavor or that the

Cookies’ lemon flavor is derived exclusively or primarily from real lemons. The front

panel of the Cookies’ packaging merely lists the type of cookie—“Lemon Snaps”—and a

picture of lemons. Given that the ingredients list found on the Cookies’ packaging

discloses that the Cookies contain ‘NATURAL AND ARTIFICIAL FLAVORS,’ this

Court concludes as a matter of law that the Cookies’ packaging – when considered as a

whole – is not materially misleading.”); Angeles, 632 F. Supp. 3d at 316 (“[T]he ingredient

list contains only ‘CARBONATED MINERAL WATER’ and ‘NATURAL FLAVORS.’

A quick look to these Nutrition Facts would thus dispel any suggestion that the Product

contained ‘an appreciable amount’ of lemon.” (citation omitted)). And while “a reasonable

consumer should not be expected to consult” an ingredients list “to correct misleading

information set forth in large bold type on the front of the box,” Mantikas, 910 F.3d at 637,

no such misleading information exists in this case. Instead, the front of the package

accurately conveys that the Product is honey and lemon flavored. The lists of active and

inactive ingredients—which mention neither lemon nor honey—provide additional

information about the source of that flavoring. See Wallace v. Wise Foods, Inc., No. 20-

CV-6831 (JPO), 2021 WL 3163599, at *2 (S.D.N.Y. July 26, 2021) (where potato chips

were labeled “cheddar & sour cream flavored” and “[t]he ingredients label . . . explain[ed]

that the chips contain cheddar cheese and sour cream while informing that they contain

lesser amounts of artificial flavoring,” the ingredients label confirmed and did not

contradict the representations on the front of the package).

Plaintiff’s arguments to the contrary are unpersuasive. Plaintiff points out that the

amended complaint alleges there is growing demand among consumers for “OTC products

based on ‘natural ingredients,’” because consumers believe such products to be “equally,

if not more effective, in treating colds and coughs.” (Dkt. 1 at 15 (citing Dkt. 17 at ¶¶ 5-6,

8)). However, no reasonable consumer could believe that the Product is made from

“natural ingredients.” The front label makes no such claims, and discloses that the Product

contains acetaminophen, doxylamine succinate, phenylephrine hydrochloride, and

dextromethorphan hydrobromide. (Dkt. 17 at ¶ 1). A reasonable consumer’s desire for

“natural ingredients” would not cause him or her to simply ignore this information.

Plaintiff also argues that the use of the qualifying term “flavors” by competitors

would cause a reasonable consumer to conclude that the Product contained a more than de

minimis amount of honey and lemon. (Dkt. 23 at 15-16; see Dkt. 17 at ¶ 35 (“Plaintiff

viewed and/or was aware of how competitor products truthfully represented they only had

‘honey lemon flavors’ instead of honey and lemon ingredients.”)). But in both examples

provided by Plaintiff, the packaging at issue states “Green Tea & Honey Lemon Flavors.”

(Dkt. 17 at ¶ 12). Unlike honey and lemon, “green tea” is not commonly used or known

as a description of flavor. Additionally, the fact that two competitors have chosen to

include the word “flavors” on their packaging does not mean that Defendant’s failure to do

so is misleading. See Brown v. Coty, Inc., No. 22 CIV. 2696 (AT), 2023 WL 2691581, at

*5 (S.D.N.Y. Mar. 29, 2023) (use of the word “clean” by the defendant’s competitors did

not render the defendant’s marketing misleading where the defendant did not market its

products as “clean”).

A reasonable consumer would also consider whether the Product—a medicinal

powder—is one that would be expected to contain a more than de minimis amount of lemon

(or lemon zest) and honey. See Chen v. Dunkin’ Brands, Inc., 954 F.3d 492, 501 (2d Cir.

2020) (a reasonable consumer would not expect “Angus Steak & Egg Breakfast Sandwich”

and “Angus Steak & Egg Wake-Up Wrap” to contain an “intact” piece of meat (as opposed

to a ground beef patty) where the products were “marketed as grab-and-go products that

can be consumed in hand, without the need for a fork and knife”). Plaintiff has not

identified a single comparable product that contains such ingredients. Notably, the

examples that Plaintiff has identified of “[c]ompetitor brands of cough and cold

medications” that “contain honey and lemon ingredients” are all liquid cough syrups. (Dkt.

17 at ¶ 11). Further, the packages of these cough syrups contain phrases such as “taste the

real honey,” “naturally drug free,” and “with honey.” (Id.).

Finally, Plaintiff is simply incorrect that the Court must accept her “‘Honey Lemon’

allegations as true” at this stage of the proceedings. (Dkt. 23 at 13). While the Court is

obliged to accept Plaintiff’s well-pleaded factual allegations as true, it is not required to

accept her conclusory allegations about how a reasonable consumer would view the

Product’s packaging. See Chen, 954 F.3d at 501; Wynn v. Topco Assocs., LLC, No. 19-

CV-11104 (RA), 2021 WL 168541, at *3 (S.D.N.Y. Jan. 19, 2021).

For all these reasons, the Court agrees with Defendant that Plaintiff’s GBL claims

are not plausibly alleged and must be dismissed. The Court need not and does not reach

Defendant’s alternative argument that Plaintiff’s GBL claims are preempted by the Food,

Drug, and Cosmetic Act. (Dkt. 22-23 at 20-22); see 21 U.S.C. § 379r (with respect to

nonprescription drugs, “no State or political subdivision of a State may establish or

continue in effect any requirement . . . that is different from or in addition to, or that is

otherwise not identical with, a requirement under this chapter, the Poison Prevention

Packaging Act of 1970 (15 U.S.C. 1471 et seq.), or the Fair Packaging and Labeling Act

(15 U.S.C. 1451 et seq.)”); Geffner v. Coca-Cola Co., 928 F.3d 198, 200 (2d Cir. 2019)

(declining to determine “whether federal law preempts the state-law claims asserted here”

because the plaintiffs “failed plausibly to allege that the ‘diet’ label [on the defendant’s soft

drink products was] misleading”).

B. Multi-State Consumer Fraud Act Claim

Plaintiff’s second claim states: “The Consumer Fraud Acts of the States in the

Consumer Fraud Multi-State Class are similar to the consumer protection statute invoked

by Plaintiff and prohibit the use of unfair or deceptive business practices in the conduct of

commerce.” (Dkt. 17 at ¶ 51). Setting aside the patent inadequacy of this allegation, which

fails even to identify the specific laws at issue, the Court has determined for the reasons

discussed above that Plaintiff has not plausibly alleged an unfair or deceptive business

practice by Defendant. Her second claim thus also fails.

C. Breaches of Express Warranty, Implied Warranty of Merchantability,

and Magnuson Moss Warranty Act

The third claim in the amended complaint is for breaches of express warranty, the

implied warranty of merchantability/fitness for a particular purpose, and the Magnuson

Moss Warranty Act. (Dkt. 17 at ¶¶ 54-66). This claim is based on Plaintiff’s assertion that

Defendant “expressly and impliedly warranted to Plaintiff that [the Product] contained

honey and lemon ingredients beyond a de minimis amount.” (Id. at ¶ 54).

To plead a breach of express warranty claim 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 v. Johnson

& Johnson Consumer Cos., 8 F. Supp. 3d 467, 482 (S.D.N.Y. 2014) (citations omitted).

Plaintiff’s claim for breach of express warranty fails because she has not “adequately pled

that the Product does not comport with the statements contained on the label.” Dashnau,

529 F. Supp. 3d at 249 (quotation omitted). In particular, and as discussed above, the label

does not state that the Product contains honey or lemon ingredients beyond a de minimis

amount.

“A breach of the implied warranty of merchantability occurs when the product at

issue is unfit for the ordinary purposes for which such goods are used.” Id. (citation

omitted). The Product is a medication for treating cold and flu symptoms, and Plaintiff has

made no allegations whatsoever that it was unfit for that purpose. Additionally, “[t]o the

extent the [amended complaint] alleges that the Product does not conform to any promise

or affirmation of fact made on its label, [Plaintiff’s] claim fails for the same reason as [her]

express warranty claim.” Twohig v. Shop-Rite Supermarkets, Inc., 519 F. Supp. 3d 154,

167 (S.D.N.Y. 2021).

Plaintiff also does not have a viable claim under the Magnuson Moss Warranty Act.

“To state a claim under the [Magnuson Moss Warranty Act], plaintiffs must adequately

plead a cause of action for breach of written or implied warranty under state law.” Garcia

v. Chrysler Grp. LLC, 127 F. Supp. 3d 212, 232 (S.D.N.Y. 2015); see also Cosgrove v.

Oregon Chai, Inc., 520 F. Supp. 3d 562, 586 (S.D.N.Y. 2021) (“[T]he MMWA merely

incorporates and federalizes state-law breach of warranty claims, including state-law

standards for liability and damages.” (internal quotation marks omitted)). The failure of

Plaintiff’s state-law breach of warranty claims is equally fatal to her Magnuson Moss

Warranty Act claim.

D. Fraud Claim

Plaintiff’s final claim is for fraud. (Dkt. 17 at ¶ 67). Federal Rule of Civil Procedure

9(b) provides: “In alleging fraud or mistake, a party must state with particularity the

circumstances constituting fraud or mistake. Malice, intent, knowledge, and other

conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). To state a

claim for common law fraud under New York law, a plaintiff must allege: “(1) a material

representation or omission of fact; (2) made with knowledge of its falsity; (3) with an intent

to defraud; and (4) reasonable reliance on the part of the plaintiff, (5) that causes damage

to the plaintiff.” Haggerty v. Ciarelli & Dempsey, 374 F. App’x 92, 94 (2d Cir. 2010).

“[C]ommon law fraud claims are subject to the particularity requirements of Rule 9(b).”

Filler v. Hanvit Bank, 156 F. App’x 413, 416 (2d Cir. 2005).

Plaintiff’s fraud claim fails for essentially the same reason as her other claims—she

has not plausibly alleged that she reasonably relied on a material misrepresentation by

Defendant. See, e.g., Daniel v. Mondelez Int’l, Inc., 287 F. Supp. 3d 177, 199 (E.D.N.Y.

2018) (“For essentially the same reasons discussed regarding the material representation

prong for the statutory claims, Plaintiff fails to plead reasonable reliance.”); Bautista v.

CytoSport, Inc., 223 F. Supp. 3d 182, 192 (S.D.N.Y. 2016) (“But, for the same reasons that

the § 349 claim fails, the fraud claim fails[.]”).

III. Leave to Amend

The final sentence of Plaintiff’s opposition to Defendant’s motion to dismiss states:

“For the foregoing reasons, the Court should deny Defendant’s Motion or in the alternative

grant leave to file a Second Amended Complaint.” (Dkt. 23 at 25). This “is not a proper

motion for leave to amend, and fails to comply with the Local Rules of Civil Procedure

with respect to the process for seeking to amend a pleading.” Wi3, Inc. v. Actiontec Elecs.,

Inc., 71 F. Supp. 3d 358, 363 (W.D.N.Y. 2014). Moreover, Plaintiff has already had a

chance to amend, and has failed to remedy the defects identified by Defendant. The Court

accordingly denies this “cursory or boilerplate request[] .. ., made solely ina memorandum

in opposition to a motion to dismiss.” Malin v. XL Capital, Ltd., 312 F. App’x 400, 402

(2d Cir. 2009).

CONCLUSION

For the foregoing reasons, the Court grants Defendant’s motion to dismiss. (Dkt.

22). The Clerk of Court is directed to enter judgment and close the case.

SO ORDERED.

PAL pd

Chief Judée

United States District Court

Dated: March 18, 2024

Rochester, New York

-15-