Tomasino v. Estee Lauder Cos.

Tomasino v. Estee Lauder Cos.

Opinion

AMENDED MEMORANDUM & ORDER

KORMAN, J.:

I assume familiarity with the underlying facts of this case from my previous ruling on this matter. See Tomasino v. Estee Lauder Companies Inc., 44 F. Supp. 3d 251, 2014 WL 4244329 (E.D.N.Y. 2014) ("Tomasino I"). 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. Specifically, she alleges that the ANR products "do not and cannot live up to" [*2]  the advertised promise to "repair past visible DNA damage" as a means of making skin look younger. Id. at ¶¶ 8, 27. In the previous order, 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, 2014 WL 4244329. 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. Tomasino subsequently filed a Second Amended Complaint, repleading her General Business Law claims and asserting an additional claim for breach of contract. 2d Am. Compl., ECF No. 21. Estee Lauder has once again moved to dismiss the complaint pursuant to Rules 12(b)(6) and 12(f). Mot. to Dismiss 2d Am. Compl., ECF No. 26. The crux of the issue is whether plaintiff's new pleading makes her claims sufficiently plausible to withstand a motion to dismiss.

ANALYSIS

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