Tomasino v. Estee Lauder Cos.

Tomasino v. Estee Lauder Cos.

Opinion

MEMORANDUM & ORDER

KORMAN, J.:

I assume familiarity with the underlying facts of this case from my previous rulings on this matter. See Tomasino v. Estee Lauder Cos., 44 F. Supp. 3d 251 (E.D.N.Y. 2014) ("Tomasino I"); Tomasino v. Estee Lauder Cos., No. 13-CV-4692, 2015 U.S. Dist. LEXIS 38918, 2015 WL 1470177 (E.D.N.Y. Mar. 31, 2015) ("Tomasino II"). Briefly, plaintiff Donna Tomasino, on behalf of herself and all others similarly situated, brought a suit in diversity alleging that The Estee Lauder Companies Inc., Estee Laboratories, LLC, and Estee Lauder Inc. (collectively "Estee Lauder") advertise their Advanced Night Repair ("ANR") collection in a false, deceptive, or misleading way. 2d Am. Compl. [*2]  ¶ 2, ECF No. 21. Specifically, she alleges that the ANR products "do not and cannot live up to" the advertised promise to "repair past visible DNA damage" as a means of making skin look younger. Id. at ¶¶ 8, 27.

In Tomasino I, I dismissed with prejudice Tomasino's claims for breach of express warranty, breach of implied warranty, and unjust enrichment. Tomasino I, 44 F. Supp. 3d 251. I also dismissed Tomasino's claims brought under sections 349 and 350 of the New York General Business Law without prejudice and allowed her the opportunity to replead. Id. Of particular relevance here, I dismissed the breach of warranty claims because Tomasino had not provided reasonably timely notice of the breach to the defendants as required by N.Y. U.C.C. § 2-607(3)(a). Id. at 260--63. Specifically, that provision requires that after tender of goods has been accepted, "the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy." N.Y. U.C.C. § 2-607(3)(a). I ruled that the 30 months Tomasino allowed to pass from the time of her purchase until she first notified Estee Lauder of a problem was unreasonable as matter of law. Tomasino I, 44 F. Supp. 3d at 260-63.

Tomasino subsequently filed a Second Amended Complaint, repleading her General Business [*3]  Law claims and asserting an additional claim for breach of contract. 2d Am. Compl. Estee Lauder again moved to dismiss the complaint, this time asserting that the breach of contract claim was barred by res judicata and law of the case and that Tomasino's pleadings did not make her General Business Law claims sufficiently plausible to withstand a motion to dismiss. That motion was denied on both grounds. Tomasino II, 2015 U.S. Dist. LEXIS 38918, 2015 WL 1470177.

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