Herrera v. Hillside Auto Mall Inc. et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ERIKA HERRERA,
Plaintiff,
MEMORANDUM AND ORDER
- against- 	21-CV-04943 (OEM) (TAM)
HILLSIDE AUTO MALL INC. d/b/a HILLSIDE AUTO
OUTLET, LIBERTY AUTOLAND INC., and CAPITAL
ONE AUTO FINANCE, INC. a division of CAPITAL
ONE, N.A.,
Defendants.
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ORELIA E. MERCHANT, United States District Judge:
This matter arises out of plaintiff Erika Herrera’s (“Plaintiff”) purchase of a used vehicle.
Plaintiff alleges defendants “Hillside Auto Mall Inc., d/b/a Hillside Auto Outlet,” “Liberty
Autoland Inc.,” and “Capital One Auto Finance, Inc., a division of Capital One, N.A.”
(“Defendants”) failed to disclose the used vehicle’s structural damage and salvaged title. 	See
generally Notice of Removal by Defendant Capital One, N.A. d/b/a Capital One Auto Finance,
Exhibit A at 3-17, Dkt. 1-1 (the “Complaint” or “Compl.”).1
Plaintiff seeks monetary damages from Defendants for breach of express warranty under
New York Uniform Commercial Code (“NYUCC”) § 2-313; breach of implied warranty of
merchantability under NYUCC § 2-314; and breach of New York Vehicle and Traffic Law § 417.
See id. ¶¶ 38-72. Further, Plaintiff seeks monetary damages and a declaratory judgment against
Defendants for violation of the Magnusson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq. (the
“MMWA”). See id. ¶¶ 73-80. Additionally, Plaintiff seeks monetary damages from Hillside Auto
Mall Inc. d/b/a Hillside Auto Outlet (“Hillside Auto Mall”) and Liberty Autoland Inc. (“Liberty”),
1 References to the Complaint are to the page numbers contained in the automatically generated ECF header.
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in particular, for false advertising in violation of New York General Business Law § 350; deceptive
acts and practices in violation of New York General Business Law § 349; common law fraud; and
breach of warranty of title. See id. ¶¶ 81-108.
Before the Court is a motion for summary judgment filed by Defendant Capital One Auto
Finance, a division of Capital One, N.A. (“Capital One”), and non-party 161-10 Hillside Ave.
Auto, LLC d/b/a Hillside Auto Outlet (“161-10 Hillside Ave. Auto”) (Capital One and 161-10
Hillside Ave. Auto, collectively, “Movants”).2
Also before the Court is Plaintiff’s cross-motion for summary judgment on claims for
“fraud by omission and intentional misrepresentation,” “professional negligence and lack of due
diligence,” “breach of contract and duty of good faith and fair dealing,” and “civil liability under
New York’s Deceptive Business Practices Act, General Business Law § 349.” Opp’n at 40-41.
Plaintiff additionally moves for default judgment as to Defendant Liberty. Id. at 43-44. Further,
Plaintiff requests sanctions as to purported “litigation misconduct by defense counsel.” Id. at 41-
43.3
After a review of the summary judgment evidence, the Court finds that it lacks subject-
matter jurisdiction.
2 See Notice of Motion, Dkt. 87; Memorandum of Law in Support of Defendant Capital One Auto Finance and Non-
Party 161-10 Hillside Ave Auto, LLC’s Motion for Summary Judgment Under Fed. R. Civ. P. 56, Dkt. 87-2 (the
“Motion” or “Mot.”); Defendants’ Statement of Undisputed Material Facts Pursuant to Local Rule 56.1, Dkt. 87-3
(“Defs.’ Rule 56.1”); Plaintiff Erika Esperanza Herrera Nieto’s Memorandum of Law in Opposition to Defendant
Capital One Auto Finance and Non-Party 161-10 Hillside Ave Auto, LLC’s Motion for Summary Judgment Under
Fed. R. Civ. P. 56, Dkt. 91 (the “Opposition” or “Opp’n”); Plaintiff’s Response to Defendants’ Statement of
Undisputed Material Facts Pursuant to Local Rule 56.1, Dkt. 87-28 (“Pl.’s Rule 56.1 Response”); Reply Memorandum
of Law in Further Support of Defendant Capital One Auto Finance and Non-Party 161-10 Hillside Ave Auto, LLC’s
Motion for Summary Judgment Under Fed. R. Civ. P. 56 and in Opposition to Plaintiff’s Cross-Motion for Summary
Judgment and Sanctions, Dkt. 87-72 (the “Reply”). The Court acknowledges Capital One’s assertion that it was
“erroneously named as ‘Capital One Auto Finance, Inc. a division of Capital One, N.A.’” in the Complaint, Mot. at
1., and that “Capital One Auto Finance, Inc. a division of Capital One N.A.” is “not an actual entity,” Declaration of
Oleg Mestechkin in Support of Defendants’ Motion Under FRCP Rule 56 for Summary Judgment ¶ 4 n.1, Dkt. 87-1.
3 Plaintiff filed these motions in opposition to the Movants’ motion for summary judgment and not as standalone
motions.
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BACKGROUND4
A. The Parties
Pro se Plaintiff is a natural person currently residing in Miami-Dade County, Florida.
Compl. ¶ 3. Movant and named Defendant Capital One is a national banking association with a
headquarters located in McLean, Virginia. Notice of Removal by Defendant Capital One, N.A.
d/b/a Capital One Auto Finance ¶ 16, Dkt. 1 (the “Notice of Removal”). Specific to this matter,
Capital One financed Plaintiff’s purchase of the vehicle at issue. Declaration of Giovanni Macias
in Support of Capital One’s Motion for Summary Judgment ¶ 8, Dkt. 87-5. 	Movant, and self-
declared “non-party,” 161-10 Hillside Ave. Auto is a limited liability company doing business as
Hillside Auto Outlet. See Response to Plaintiff’s Motions 48-58, 60, 61, and 62 at 1, Dkt. 66 at 2.
Non-movant and named Defendant Hillside Auto Mall is alleged to be a domestic
corporation organized and existing under the laws of the State of New York, with its principal
place of business located at 150-01 Hillside Avenue, Jamaica, New York, 11432. 	Notice of
Removal ¶ 14. Movants urge that Hillside Auto Mall is not to be confused with 161-10 Hillside
Ave. Auto because the two entities do not share the same address or common officers; there has
never existed a corporate relationship between the two companies; there has never been a
contractual relationship between the two companies; and there has never been any business
transacted between the two companies. Defs.’ Rule 56.1 ¶¶ 25-28; Declaration of Susan Zhivo in
Support of Defendants’ Motion Under FRCP Rule 56 for Summary Judgment ¶¶ 5-10, Dkt. 87-4
(“Zhivo Decl.”).
4 The following facts from the parties’ Local Rule 56.1 statements are undisputed unless otherwise noted.
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Defendant Liberty is alleged to be a car dealership and domestic corporation organized and
existing under the laws of the State of New York with a principal place of business located at 177-
16C Liberty Ave., Jamaica, New York, 11435. Notice of Removal ¶ 15.
B. The Vehicle Purchase
On or about June 12, 2020, Liberty purchased a used 2017 Mazda CX-9 (Vehicle ID No.
JM3TC-BCY8H-01340-64) (the “Vehicle”) from JPMorgan Chase Bank at an auction.5 Defs.’
Rule 56.1 ¶ 1. The Vehicle’s history, including incurred damage and inspections, was reflected in
a CARFAX Vehicle History Report “based only on information supplied to CARFAX and
available as of [June 22, 2020, at 12:29 p.m. CT].” Zhivo Decl., Exhibit 11 at 2, Dkt. 87-16 (the
“CARFAX Report”).6 As of the date of the auction, the Vehicle was reportedly involved in two
accidents, resulting in “moderate to severe” damage in the right rear end of the Vehicle as of
December 11, 2017, and “minor” damage in the rear center section of the Vehicle as of February
20, 2020. Defs.’ Rule 56.1 ¶¶ 2-4; See CARFAX Report at 3-4. As of December 16, 2019, the
Vehicle passed a safety and emissions inspection by the New York Inspection Station. Defs.’ Rule
56.1 ¶ 5; CARFAX Report at 4.7
On June 21, 2020, Plaintiff offered to purchase the Vehicle from Liberty. Defs.’ Rule 56.1
¶ 6. On June 22, 2020, Liberty sold the Vehicle to 161-10 Hillside Ave. Auto. Defs.’ 56.1 ¶ 7;
see Zhivo Decl., Exhibit 12 at 2-3, Dkt. 87-17.
A 161-10 Hillside Ave. Auto salesperson showed the CARFAX Report to Plaintiff, which
she signed and dated on June 22, 2020. Defs.’ Rule 56.1 ¶¶ 10-11; Zhivo Decl., Exhibit 11 at 4,
5 Plaintiff challenges “the authenticity and sufficiency of the ‘Bill of Sale.’” Pl.’s Rule 56.1 Response ¶ 1.
6 Plaintiff challenges the credibility of the CARFAX Report. See Opp’n at 32.
7 References to Defendants’ exhibits are to the page numbers contained in the automatically generated ECF header.
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Dkt. 87-16. 	Movants state that, before Plaintiff purchased the Vehicle, the salesperson also
presented Plaintiff with a copy of the Certificate of Title from JP Morgan Chase Bank. Defs.’ Rule
56.1 ¶ 9; Zhivo Decl. ¶ 22; see also Opp’n at 19.
On June 22, 2020, Plaintiff entered into a Retail Installment Contract to purchase the
Vehicle (the “Retail Installment Contract”). Defs.’ Rule 56.1 ¶ 8. Plaintiff asserts that she was
not informed that she was entering into the contract with 161-10 Hillside Ave. Auto. Pl.’s Rule
56.1 Resp. ¶ 8. 	The total price of the Retail Installment Contract was $27,149.81, of which
$22,149.81 would be financed by Capital One. Defs.’ Rule 56.1 ¶ 8; see also Zhivo Decl., Exhibit
13 at 2, Dkt. 87-18. 	161-10 Hillside Ave. Auto assigned its rights under the Retail Installment
Contract to Capital One. Defs.’ Rule 56.1 ¶ 13. Plaintiff also signed a document with letterhead
for 161-10 Hillside Ave. Auto that she was “willingly and responsibly” declining “any warranty
for the vehicle purchased from us here at Hillside Auto Outlet.” Pl.’s Exhibit 8 at 5; Dkt. 87-35.
The Retail Installment Contract provides that Plaintiff made a $5,000 down payment.
Zhivo Decl., Exhibit 13 at 9.
C. Plaintiff’s Use of the Vehicle and Performance Under the Retail Installment
Contract
Plaintiff and her husband used the Vehicle for their work as delivery drivers and drove the
vehicle for 62,000 miles in total. Defs.’ Rule 56.1 ¶¶ 14-15. Plaintiff serviced the Vehicle after
three different incidents. Id. ¶ 16; Pl.’s Rule 56.1 Resp. ¶ 16. In December 2020, Plaintiff serviced
the Vehicle after it was hit from behind while parked near her home in New Jersey. Defs.’ Rule
56.1 ¶ 17. In June 2021, Plaintiff put defective gasoline in the Vehicle’s gas tank, which required
a mechanic to remove and clean out the tank. Id. ¶ 18. In March 2023, the Vehicle required repair
after Plaintiff and her husband were involved in an accident with a motorcycle. Id. ¶¶ 20-21.
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To date, Plaintiff has paid $9,795.75 under the Retail Installment Contract. 	Id. ¶ 32.
Movants claim that she still owes Capital One a balance of $16,076.05. Id.
D. Plaintiff’s Complaints About the Vehicle’s Title
Plaintiff claims that she did not know that the Vehicle had a salvage status until she
attempted to register the Vehicle in New Jersey. Opp’n at 11. Plaintiff requested the title from
Capital One to complete registration. Id. Capital One mailed her a copy of a title from the State
of New Jersey, issued on September 22, 2020, showing that the Vehicle’s status as “S” for salvage
(the “September 22 Title”). See id. at 11; Pl.’s Exhibit 12, Dkt. 87-39 at 2.
PROCEDURAL HISTORY
On June 15, 2021, Plaintiff, originally represented by counsel, commenced this action in
New York Supreme Court, Queens County, against Defendants seeking a judgment in her favor
on eight causes of action. See generally Compl. On September 1, 2021, Capital One, on consent
of Hillside Auto Mall and Liberty, removed this action from state court to federal court. Notice of
Removal by Defendant Capital One, N.A. d/b/a Capital One Auto Finance, Dkt. 1 (“Notice of
Removal”); Consent to Removal, Dkt. 1-2.
On January 20, 2022, non-party Hillside Auto Outlet and Liberty filed a joint answer to the
Complaint. See generally Defendants’ Answer with Affirmative Defenses to Complaint, Dkt. 16.
On the same day, Capital One filed its answer. 	See generally Capital One’s Answer with
Affirmative Defenses to Complaint, Dkt. 17.
On May 8, 2023, Plaintiff’s counsel moved to withdraw, citing irreconcilable conflicts.
See Declaration of Robert J. Nahoum in Support of Application to Withdraw as Counsel, Dkt. 28-
1. On May 17, 2023, the Court granted his request. See Minute Entry and Order, dated May 17,
2023. 	Plaintiff thereafter indicated her intent to proceed pro se. 	Letter from Plaintiff to Hon.
Taryn A. Merkl (May 31, 2023), Dkt. 31.
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On November 4, 2024, Liberty’s attorney filed a renewed motion to withdraw as its
counsel. Status Report and Renewed Motion to Withdraw, Dkt. 63. The Court granted his motion
on November 5, 2024, further directing Liberty to “clarify the status of the corporation’s
representation by 11/21/2024” and warning that “[f]ailure to have counsel appear for the corporate
Defendant may result in corporate Defendant Liberty Autoland Inc. being found to be in default.”
Order, dated Nov. 5, 2024. To date, no counsel has appeared for Liberty.
The parties proceeded to discovery in April 2022, see Minute Entry and Order, dated Mar.
16, 2022, and did not file a status report certifying the close of all discovery. On March 19, 2025,
Movants moved for a pre-motion conference in anticipation of a motion for summary judgment.
Motion for a Pre-Motion Conference for an Application Under Fed. R. Civ. P. 56, Dkt. 79. On
March 20, 2025, the Court denied Movants’ request and set a briefing schedule for the anticipated
motion for summary judgment. 	Order, dated Mar. 20, 2025. 	On June 11, 2025, Movants filed
their fully briefed Motion. 	See generally Mot.; Opp’n; Reply. 	On June 13, 2025, Plaintiff
submitted a letter to the Court explaining that she made corrections to the exhibit list in her
Opposition, had requested Movants to submit her Opposition with those corrections, and was under
the impression that Movants were going to submit her corrected exhibit list. Letter from Plaintiff
to the Court (June 13, 2025), Dkt. 90. However, because the Movants had filed the old version of
her Opposition, she requested that the Court instead consider her opposition filed on June 13, 2025,
with the updated exhibit list. Id. Plaintiff represents that the amended exhibit list is the only edit.
Id. 	Although Plaintiff did not indicate whether Movants opposed or objected to her requests,
Movants did not file any opposition.
On January 27, 2026, the Court ordered Defendants to file a supplemental brief addressing
why the Court may exercise subject-matter jurisdiction and, in particular, specifying how the
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amount-in-controversy thresholds under 28 U.S.C. § 1332(a) and the MMWA are met. 	Order,
dated Jan. 27, 2026. 	On January 30, 2026, Capital One8 filed a supplemental memorandum.
Defendants Capital One Auto Finance’s Response to January 27, 2026 Text Order Regarding
Jurisdiction, Dkt. 92 to 92-1, (the “Supplemental Memorandum” or “Suppl. Mem.”). Capital One
explained the basis for how the amount-in-controversy threshold under 28 U.S.C. § 1332(a) was
met and withdrew its statement for removal on the basis of federal question jurisdiction. Id. ¶¶ 10-
17, 27.
DISCUSSION
A. Subject-Matter Jurisdiction
A federal court generally has subject-matter jurisdiction over a civil case if it has either
federal question jurisdiction or diversity jurisdiction. See 28 U.S.C. §§ 1331, 1332(a). However,
“[i]f at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 	28 U.S.C. § 1447(c). 	“[F]ailure of subject matter
jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte.”
Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000); see also Mitskovski
v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 133 (2d Cir. 2006) (citing Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986); Wynn v. AC Rochester, 273 F.3d 153, 157
(2d Cir. 2001)). In the context of a removed action, if subject-matter jurisdiction is lacking, the
action must be remanded. 28 U.S.C. § 1447(c); see also Lupo v. Hum. Affs. Int’l, Inc., 28 F.3d
269, 273-74 (2d Cir. 1994). Capital One has conceded that there is no basis in federal question
jurisdiction for removal, claiming that “the amount in controversy based on the claim for violation
of the MMWA does not appear to be sufficiently quantifiable to meet the jurisdictional
8 Capital One’s Supplemental Memorandum did not provide an explanation for why Hillside Auto Mall or 161-10
Hillside Ave. Auto did not respond to the Court’s January 27, 2026, order.
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requirements.” See Suppl. Mem. ¶ 27. Accordingly, the Court only addresses whether there is a
basis for diversity jurisdiction.
For claims arising under diversity jurisdiction, complete diversity must exist between the
parties and the amount in controversy must exceed $75,000.00, exclusive of interest and costs. 28
U.S.C. § 1332(a). Here, complete diversity of citizenship exists among the parties, see Notice of
Removal ¶¶ 13-16, and is not at issue.
However, the amount-in-controversy requirement is not met. To establish the amount in
controversy, a defendant must show a reasonable probability that the claim is for more than the
jurisdictional amount. See Scherer v. Equitable Life Assurance Soc’y of the U.S., 347 F.3d 394,
397 (2d Cir. 2003); Charles v. Costco Wholesale Corp., 416 F. Supp. 3d 167, 169 (E.D.N.Y. 2017);
In re Joint E. & S. Dist. Asbestos Litig., 14 F.3d 726, 730 (2d Cir. 1993) (explaining that the party
asserting jurisdiction bears the burden of showing that the case is properly before the court).
“[F]ederal 	courts 	construe 	the 	removal 	statute 	narrowly, 	resolving 	any 	doubts 	against
removability.” Lupo, 28 F.3d at 274 (quoting Somlyo v. J. Lu-Rob Enters., 932 F.2d 1043, 1045-
46 (2d Cir. 1991)).
Capital One’s Notice of Removal asserts that the Court has diversity jurisdiction because
the matter in controversy exceeded $75,000, exclusive of interests and costs. Notice of Removal
¶¶ 12, 17 (citing Compl. ¶¶ 10, 72, 87, 95). 	In doing so, Capital One cites to the Complaint,
however, Plaintiff alleges no monetary damages in her Complaint. Capital One does not deny that
Plaintiff’s Complaint lacks any facial claims as to damages. See generally Suppl. Mem. When
ordered by the Court to explain the basis for diversity jurisdiction amount in controversy, Capital
One categorized Plaintiff’s claims for damages into actual damages, punitive damages, and treble
damages. Id. ¶¶ 6-17. Solely for the purposes of calculating the amount in controversy, Capital
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One asserts that Plaintiff’s total potential recoverable damages as to Capital One are $30,871.80.
Id. ¶ 7. Capital One further asserts that Plaintiff’s claimed punitive damages may be considered
for removal purposes and, “[u]sing a conservative 1:1.5 ratio of actual damages to punitive
damages, the Complaint puts more than $77,000 at issue.” Id. ¶ 11. Next, Capital One explains
that Plaintiff can claim treble damages of up to $1,000 and $10,000 under New York General
Business Law §§ 349 and 350, respectively. Id. ¶ 13-16. Thus, Capital One argues the amount in
controversy exceeds $88,000. Id. ¶ 17.
Here, Plaintiff’s actual damages ($30,871.80) in addition to the maximum treble damages
she might recover ($11,000) only amount to $41,871.80, which does not meet the amount-in-
controversy threshold. Thus, the Court must scrutinize Capital One’s reliance on Plaintiff’s claims
for punitive damages on her claims for violation of NYUCC §§ 2-313 and 2-314, N.Y. Vehicle &
Traffic Law § 417, and the MMWA, Compl. ¶¶ 51, 62, 72, 80, as a basis for reaching the amount-
in-controversy threshold. When considering whether punitive damages count toward the amount-
in-controversy threshold, a “trial court is plainly not compelled to accept a claim of punitive
damages, however unwarranted, made for the purpose of conferring federal jurisdiction.” Zahn v.
Int’l Paper Co., 469 F.2d 1033, 1033 n.1 (2d. Cir. 1972), aff’d, 414 U.S. 291 (1973); see also
Nwanza v. Time, Inc., 125 F. App’x 346, 348-49 (2d Cir. 2005). Specifically, “in computing [the]
jurisdictional amount, a claim for punitive damages is to be given closer scrutiny, and the trial
judge accorded greater discretion, than a claim for actual damages.” 	Pyskaty v. Wide World of
Cars, LLC, 856 F.3d 216, 225 (2d Cir. 2017) (alteration in original) (quoting Zahn, 469 F.2d at
1033 n.1). “The courts’ heightened scrutiny includes determining whether, given the facts alleged,
damages are recoverable under state law. If the applicable law would not entitle the plaintiff to
the sums claimed as punitive damages, such sums should be excluded in assessing the amount in
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controversy.” Miller v. Eur. Am. Bank, 921 F. Supp. 1162, 1167 (S.D.N.Y. 1996) (citing Zahn,
469 F.2d at 1034); see also Pyskaty, 856 F.3d at 225 (“[P]unitive damages are recoverable under
the MMWA if they would be recoverable in a breach-of-warranty action brought under governing
state law.”) (quoting Pyskaty v. Wide World of Cars, LLC, 15-cv-1600 (JCM), 2016 WL 828135,
at *6 (S.D.N.Y. Feb. 23, 2016), rev’d on other grounds, 856 F.3d 216 (2d Cir. 2017)).
Though Capital One states that “[p]unitive damages are recoverable for the claims alleging
violation of NYUCC §§ 2-313 and 2-314, and the MMWA,” Suppl. Mem. ¶ 9, Plaintiff’s claims
do not meet the punitive damages standard under New York law. New York courts apply the same
punitive damages standard applicable to breach-of-contract claims and breach-of-warranty claims.
Pyskaty, 856 F.3d at 225. 	That standard requires that: (1) the defendant’s conduct must be
actionable as an independent tort; (2) the tortious conduct must be of an egregious nature; (3) the
egregious conduct must be directed to the plaintiff; and (4) it must be part of a pattern directed at
the public generally. 	See N.Y. Univ. v. Cont’l Ins., 662 N.E.2d 763, 767 (N.Y. 1995). 	“In
determining whether the fourth requirement is satisfied, the New York Court of Appeals has
‘invoked [a] . . . distinction between “a gross and wanton fraud upon the public” and “an isolated
transaction incident to an otherwise legitimate business,”’ the latter of which does ‘not constitute
conduct aimed at the public generally.’” Pyskaty, 856 F.3d at 226 (quoting TVT Recs. v. Island
Def Jam Music Grp., 412 F.3d 82, 95 (2d Cir. 2005)).
The facts alleged do not constitute conduct directed at the public generally and are not
indicative of a broader pattern of conduct. Rather, Plaintiff’s Complaint alleges that she is entitled
to punitive damages because, by “advertising a structurally damaged vehicle for sale to the general
public and repeatedly misrepresenting its condition, accident history, and provenance, [Liberty and
Hillside Auto Mall] engaged in conduct that was not purely private, but rather impacts important
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public rights—guaranteed by statute—to safe, roadworthy vehicles.” Compl. ¶ 35. Plaintiff only
alleges one vehicle being advertised to the public, which is nothing more than an isolated
transaction. 	See, e.g., Mayline Enters. v. Milea Truck Sales Corp., 641 F. Supp. 2d 304, 312
(S.D.N.Y. 2009) (finding that punitive damages were not recoverable because the allegation that
the truck was held out for sale to the general public with an altered odometer still only proves a
single incident of odometer alteration). 	Similarly, the incidental safety effects of Defendants’
conduct here “does not constitute conduct directed at the public generally.” See Pyskaty, 856 F.3d
at 226 (quoting TVT Recs., 412 F.3d at 95) (finding that the plaintiff’s allegations that the vehicle
was unsafe to drive and inoperable on public streets did not constitute conduct directed at the
public generally).9
Consequently, Plaintiff’s request for punitive damages as to her MMWA and New York
breach-of-warranty claims do not count towards the amount in controversy and the threshold
amount is not met. 	It was Capital One’s burden upon removal to this Court to prove that the
jurisdictional amount was met, and it did not do so. Accordingly, this Court lacks subject-matter
jurisdiction to decide the claims before it.
B. Plaintiff’s Cross-Motion for Summary Judgment, Request for Sanctions, and
Motion for Default Judgment
Because the Court determines that it lacks subject-matter jurisdiction, it cannot reach the
issues Plaintiff raises her cross-motion for summary judgment, Opp’n at 39-41, motion for
9 To the extent that Plaintiff argues that she has produced evidence “showing that Hillside Auto Outlet has engaged in
a pattern of deceptive conduct affecting multiple consumers [and p]ublicly available reviews on platforms such as
Yelp, and DealerRater, consistently describe similar allegations of misconduct,” Opp’n at 23-24, this raises hearsay
and authenticity evidentiary issues. These allegations were not included in her Complaint and do not clearly “evince[]
[the] high degree of moral turpitude and demonstrate[] such wanton dishonesty as to imply a criminal indifference to
civil obligations” by Defendants that is contemplated by the high bar required to assert punitive damages. Walker v.
Sheldon, 179 N.E.2d 497, 499 (N.Y. 1961); see also Ross v. Louise Wise Svcs., Inc., 868 N.E.2d 189, 196 (N.Y. 2007).
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sanctions pursuant to Federal Rule of Civil Procedure 11(c)(3), id. at 41-43, and motion for default
judgment as to Liberty, id. at 43-44.
CONCLUSION
For the foregoing reasons, this Court lacks subject-matter jurisdiction. 	This action is
dismissed for lack of subject-matter jurisdiction and is remanded to the Supreme Court of New
York State, Queens County, under Index No. 713716/2021.
SO ORDERED.
/s/
ORELIA E. MERCHANT
United States District Judge
March 8, 2026
Brooklyn, New York
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