"More truly characteristic of dissent is a dignity, an elevation, of mood and thought and phrase. Deep conviction and warm feeling are saying their last say with knowledge that the cause is lost. The voice of the majority may be that of force triumphant, content with the plaudits of the hour, and recking little of the morrow. The dissenter speaks to the future, and his voice is pitched to a key that will carry through the years."
Benjamin N. Cardozo, Law and Literature 36 (1931)
| PRESENT: | INDEX NO.: 17730/2003 | |
| HON. PAUL J. BAISLEY, JR., J.S.C. | ||
| MOTION DATE: 01/18/2007 | ||
| JOHN E. CRUZ, | MOT. NO.: 003 MG | |
| Plaintiff, | ||
| -against- | ||
| TOYOTA MOTOR CREDIT CORPORATION and | ||
| LEXUS FINANCIAL SERVICES, | ||
| Defendants. | ||
| PLAINTIFF'S ATTORNEY: | DEFENDANTS' ATTORNEY: | |
| LAW OFFICE OF CORY J. COVERT, P.C. | SIMMONS, JANNACE & STAGG, L.L.P. | |
| 1775 Expressway Drive North | By: Debra L. Wabnik, Esq. | |
| Hauppauge, New York 11788 | 75 Jackson Avenue Syosset, New York 1179 1-3139 |
Upon the following papers numbered 1 to 54 read on this motion for leave to renew and reargue: Notice of Motion and Affirmation 1 to 5 and supporting papers; Memorandum of Law 6 to 30; Affirmation and Affidavit in Opposition 31 to 36 and supporting papers; Memorandum of Law 37 to 44; Reply Memorandum of Law 45 to 54; it is;
ORDERED that the motion (motion sequence no. 003) of defendants TOYOTA MOTOR CREDIT CORPORATION and LEXUS FINANCIAL SERVICES for an order pursuant to CPLR R. 2221 granting defendants' motion to renew and reargue defendants' prior motion for summary judgment dismissing plaintiff's complaint and plaintiff's cross-motion for leave to amend the complaint (incorrectly denominated as a motion to reargue the Court's February 14,2005 order determining the motions), and, upon renewall reargument, denying plaintiff's motion to amend and granting defendants judgment dismissing plaintiff's complaint, is granted.
Defendants' submissions establish that the Court overlooked certain matters of fact and law in rendering its determination upon the prior motions. Moreover, defendant's submissions contain new facts not offered on the prior motion that would change the prior determination. In particular, it is conceded by plaintiff that §168 1s-2(a) of the Fair Credit Reporting Act ("FCRA") (1 5 U.S.C. §1681s-2(a)) does not provide a private right of action. 15 U.S.C. §1681s-2(d); Pvakash v. Homecomings Fin., 2006 U.S. Dist. LEXIS 62911 (E.D.N.Y. Sept. 5,2006). Moreover, plaintiff does not allege that he notified the consumer reporting agencies ("CRAs") of his claims that defendants furnished false information to the CRAs, or that the CRAs contacted defendants about plaintiffs claims. Accordingly, plaintiff cannot state a claim under FCRA 51681s-2(b). Id. In light of the foregoing, the Court should not have granted plaintiffs crossmotion for leave to amend the complaint to assert a cause of action under FCRA § 1681 s-2.
In addition, the Court is constrained to agree with defendants, upon a careful review of the submissions, that all of plaintiffs state law claims are preempted by the FCRA. 15 U.S.C. §1681t(b)(l)(F), 15 U.S.C. §1681h(e).
In light of the foregoing, the Court grants defendants' motion for renewal and reargument and, upon such renewal and reargument, denies plaintiff's motion for leave to amend the complaint and grants defendants' motion for summary judgment dismissing the complaint in its entirety.
Settle judgment.
Dated: April 9,2007 HON. PAUL J. BAISLEY. JR.
J.S.C.