Servedio v. State Farm Insurance

SUMMARY ORDER Plaintiff-appellant Dominick Servedio (“plaintiff’ or “Servedio”), commenced this putative class action against defendant-ap-pellee State Farm Insurance (“defendant”) raising claims of deceptive trade practices and false advertising, in violation of New York General Business Law §§ B49, 350 and common law fraud. On September 19, 2011, the District Court granted defendant’s motion to dismiss all of plaintiffs claims except his Section 349 claim. See Servedio v. State Farm Ins. Co., 814 F.Supp.2d 214, 220 (E.D.N.Y.2011). Defendant moved for reconsideration of the District Court’s ruling on the Section 349 claim. On September 6, 2012, the District Court granted the motion for reconsideration, dismissed plaintiffs Section 349 claim and dismissed his complaint in its entirety. See Servedio v. State Farm Ins. Co., 889 F.Supp.2d 450, 451 (E.D.N.Y.2012). Plaintiff then moved for reconsideration of that decision, which the District Court denied. See Servedio v. State Farm Mut. Auto. Ins. Co., No. 10-CV-1458(FB), 2012 WL 6600317, at *1 (E.D.N.Y. Dec. 18, 2012). This timely appeal followed. We assume the parties’ familiarity with the facts and procedural history of this case, to which we refer only as necessary to explain our decision to affirm. On appeal, plaintiff claims that the District Court “misapprehended” his Section 349 claim. Appellant’s Br. 11. We review plaintiffs challenge to the first reconsideration motion for an abuse of discretion, see Harris v. Kuhlmann, 346 F.3d 330, 348 (2d Cir.2003), but note that this appeal also brings the underlying decision up for review, see “R” Best Produce, Inc. v. DiSapio, 540 F.3d 115, 121 (2d Cir.2008). “We review de novo the grant of a motion to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).” Harris v. Mills, 572 F.3d 66, 71 (2d Cir.2009). Having conducted a de novo review of the record in light of these principles, we conclude that the District Court did not err, substantially for the reasons set forth by the District Court in its decisions of September 6, 2012 and December 18, 2012. See Servedio v. State Farm Ins. Co., 889 F.Supp.2d at 452 (“[Deceived consumers may nevertheless receive — and retain the benefits of — something of value, even if it is not precisely what they believed they were buying”); Servedio v. State Farm Mut. Auto. Ins. Co., 2012 WL 6600317, at *1 (“Servedio does not claim that [defendant] failed to properly provide benefits under the additional [] coverage provision”). We have reviewed all of plaintiffs arguments on appeal and find them to be without merit. Accordingly, we AFFIRM the September 6, 2012 order of the District Court.