Timber Hill Enterprises, LLC v. Alta Equipment Company

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TIMBER HILL ENTERPRISES, LLC,
Plaintiff,
-v-
ALTA EQUIPMENT COMPANY,
Defendant.
1:26-CV-2 (AJB/DJS)
Hon. Anthony Brindisi, U.S. District Judge:
DECISION and ORDER
I. 	INTRODUCTION
On December 3, 2025, plaintiff Timber Hill Enterprises LLC (“plaintiff”) filed this action
in Supreme Court, Greene County, alleging, inter alia, that defendant Alta Equipment Company
(“defendant”) violated New York General Business Law (“GBL”) § 349, a consumer-protection
statute. See Dkt. No. 1. Briefly stated, plaintiff’s various claims arise from its purchase of a JCB
Teleskid Model 3TS-8T (the “machine”) from defendant and the parties’ subsequent dispute over
the machine’s alleged defects. See id.
On January 2, 2026, defendant removed this action to federal court. Dkt. No. 1. After
plaintiff amended its complaint as of right, Dkt. No. 6, defendant moved to dismiss plaintiff’s
complaint insofar as it asserted a GBL § 349 claim. Dkt. No. 10.
The motion has been fully briefed, Dkt. Nos. 10, 11, 12, and will be considered on the ba-
sis of the submissions without oral argument.
II. 	BACKGROUND
The following facts are taken from plaintiff’s amended complaint, Dkt. No. 6, and are as-
sumed true for the purpose of assessing defendant’s motion to dismiss.
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Plaintiff is a New York limited liability company with its principal place of business in
Round Top, New York. Am. Compl. ¶ 1. Defendant is a business entity authorized to do busi-
ness in New York that sells heavy equipment.1 Id. ¶ 2, 23–24. This action arises from plaintiff’s
purchase of a single piece of equipment from defendant and the parties’ subsequent dispute re-
garding that equipment and defendant’s efforts to repair it.
On August 28, 2024, plaintiff purchased the machine from defendant for approximately
$114,500. Am. Compl. ¶ 5. The machine was delivered on or about August 30, 2024. Id. ¶ 6.
Plaintiff alleges that, shortly after delivery, the machine began to exhibit mechanical is-
sues. Am. Compl. ¶ 7. Between September 2024 and April 2025, plaintiff reported various
problems to defendant, including loss of power under load, hydraulic malfunctions, electrical is-
sues, and burning oil. Id. ¶¶ 7–10, 12, 16. Plaintiff requested repair or replacement under war-
ranty, but alleges that defendant, despite “assurances to the contrary,” failed to remedy the de-
fects. Id. ¶¶ 8–10. Defendant “eventually” took possession of the machine for repairs and re-
tained it for approximately one month. Id. ¶ 14.
Upon the machine’s return to plaintiff, “many of the original defects remained unre-
solved,” while new problems “continued to arise after the purported repairs.” Am. Compl. ¶ 15.
In February 2025, plaintiff again reported issues with the hydraulic system; defendant acknowl-
edged that this was a “known issue.” Id. ¶ 16–17. Around the same time, defendant issued in-
voices for certain repair work that plaintiff asserts should have been covered under warranty and
refused to repair the machine. Id. ¶ 18. Defendant instead proposed that plaintiff trade it in to-
ward a new unit at a discounted value. Id. ¶ 20.
1 Because defendant is a limited liability company whose sole member is Alta Enterprises, LLC, whose sole mem-
ber is Alta Equipment Group Inc.—a corporation incorporated in Delaware with its principal place of business in
Michigan—defendant is a citizen of Delaware and Michigan for purposes of diversity jurisdiction. See Bayerische
Landesbank, N.Y. Branch v. Aladdin Cap. Mgmt. LLC, 692 F.3d 42, 49 (2d Cir. 2012); Dkt. No. 1 ¶¶ 2–4.
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Based on these events, plaintiff asserts state-law claims for breach of warranty, breach of
contract, negligent repair, revocation of acceptance, and related relief, and—as relevant here—a
claim under GBL § 349. Am. Compl. ¶¶ 29–51.
III. 	LEGAL STANDARD
The Federal Rules of Civil Procedure permit a party to move to dismiss a pleading for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive
dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the de-
fendant is liable for the misconduct alleged.” Id.
Although a complaint “does not need detailed factual allegations” to survive a motion to
dismiss, “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555 (cleaned up). While “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice,” Iqbal, 556 U.S. at
678, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Id.
To assess this facial plausibility requirement, the court “must accept as true all of the fac-
tual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and
draw all reasonable inferences in favor of the plaintiff, Chambers v. Time Warner, Inc., 282 F.3d
147, 152 (2d Cir. 2002). In doing so, the court generally confines itself to the facts alleged in the
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pleading, documents attached to the complaint or incorporated into it by reference, and matters
of which judicial notice may be taken. Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016).
IV. 	DISCUSSION
Plaintiff’s amended complaint alleges that the defendant violated, inter alia, GBL § 349
by engaging in “materially deceptive and misleading practices” that were “likely to mislead a
reasonable consumer,” including “misrepresenting warranty coverage, charging for covered re-
pairs, returning unrepaired equipment, and coercing new purchases through discounted trade-
ins.” Am. Compl. ¶¶ 45–46.
Defendant argues that the GBL § 349 claim should be dismissed because plaintiff’s com-
plaint describes a private dispute arising from a single commercial transaction and fails to allege
either consumer-oriented, materially deceptive conduct or any injury resulting from the allegedly
deceptive conduct. Dkt. No. 10-4 (Def.’s Mem.) at 10–14.2
Section 349 makes unlawful “[u]nfair, deceptive, or abusive acts or practices in the con-
duct of any business, trade or commerce or in the furnishing of any service in [New York] state.”
N.Y. Gen. Bus. L. § 349(a). To succeed on a § 349 claim, “a plaintiff must allege that a defend-
ant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3)
plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Orlander v. Sta-
ples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (quoting Koch v. Acker, Merrall & Condit Co., 18
N.Y.3d 940, 944 (N.Y. 2012)). Put differently, “a violation of [§ 349] requires that the defend-
ant’s conduct deceive a reasonable consumer in a material respect, work a harm to the public at
large, and directly cause the plaintiff’s injury.” Medisim Ltd. v. BestMed LLC, 910 F. Supp. 2d
591, 607 (S.D.N.Y. 2012) (quoting Leider v. Ralfe, 387 F. Supp. 2d 283, 292 (S.D.N.Y. 2005)).
2 Citations to the parties’ briefing refer to the CM/ECF-generated pagination.
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Measured against this general legal standard, plaintiff’s amended complaint fails on all
three fronts. First, plaintiff’s amended complaint fails to plausibly allege that the dispute over
the machine constitutes consumer-oriented conduct. “Private contract disputes, unique to the
parties . . . [do] not fall within the ambit of the statute.” Oswego Laborers’ Local 214 Pension
Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25 (N.Y. 1995). Rather, the challenged acts
must have “a broader impact on consumers at large.” Id.
The allegations in the amended complaint arise from plaintiff’s purchase of a single piece
of equipment and defendant’s subsequent efforts (or lack thereof) to repair it. See Am. Compl.
¶¶ 5–20. In other words, plaintiff has alleged a dispute between two commercial entities con-
cerning a single transaction. Courts in this circuit routinely find this insufficient to state a claim
under GBL § 349. See, e.g., Kraft v. Staten Island Boat Sales, Inc., 715 F. Supp. 2d 464, 479
(S.D.N.Y. 2010) (dismissing § 349 claim where allegations arose from “a private contract dis-
pute” concerning the sale of a single boat); Genesco Entm’t v. Koch, 593 F. Supp. 743, 752
(S.D.N.Y. 1984) (holding that § 349 does not apply to “single-shot transaction[s]” between busi-
nesses lacking broader consumer impact); Exxonmobil Inter-Am., Inc. v. Advanced Info. Eng’g
Servs., Inc., 328 F. Supp. 2d 443, 448 (S.D.N.Y. 2004) (holding that “[§] 349 liability does not
lie where the disputed private transaction does not have ramifications for the public at large.”).
On the facts alleged, the amended complaint describes a dispute arising from a single commer-
cial transaction, not conduct directed at consumers at large.
Plaintiff attempts to cure this deficiency by alleging, “[u]pon information and belief,” that
defendant engages in similar practices with other customers and that such conduct is part of its
“standard course of dealing.” Am. Compl. ¶¶ 25–28. But these allegations are wholly conclu-
sory and unsupported by any factual detail, such as examples of other affected consumers or
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similar instances of misconduct. “When allegations are made upon information and belief, the
plaintiff must support them by offering facts upon which that belief is founded,” and “courts in
this circuit look unfavorably upon conclusory pleadings made on information and belief, espe-
cially with regard to consumer fraud claims such as those under [] § 349.” Brodie v. Green Spot
Foods, LLC, 503 F. Supp. 3d 1, 13 (S.D.N.Y. 2020) (cleaned up). Accordingly, plaintiff’s gener-
alized, conclusory assertions about possible conduct directed at others do not plausibly transform
this private business dispute into consumer-oriented conduct within the meaning of § 349.
Second, the amended complaint fails to plausibly allege materially deceptive conduct.
Section 349 proscribes deceptive business conduct, i.e., conduct that is “likely to mislead a rea-
sonable consumer acting reasonably under the circumstances.” Colpitts v. Blue Diamond Grow-
ers, 527 F. Supp. 3d 562, 576 (S.D.N.Y. 2021) (quoting Oswego Laborers’ Local 214 Pension
Fund, 85 N.Y.2d at 26).
Notably, the alleged misconduct in this case arises primarily from defendant’s post-sale
performance, not from any misrepresentation that might have induced plaintiff’s purchase of the
machine. Although plaintiff characterizes defendant’s actions as “materially deceptive and mis-
leading,” Am. Compl. ¶ 45, the underlying allegations sound in breach of contract and war-
ranty—namely, that defendant failed to repair the machine adequately, improperly charged for
certain repairs, and declined to replace the equipment.
New York courts have consistently held that such allegations, without more, do not con-
stitute materially misleading conduct under § 349. See, e.g., Schlessinger v. Valspar Corp., 21
N.Y.3d 166, 172 (N.Y. 2013) (“[§ 349] cannot fairly be understood to mean that everyone who
acts unlawfully . . . is being ‘deceptive.’ Such an interpretation would stretch the statute beyond
its natural bounds to cover virtually all misconduct by businesses that deal with consumers.”).
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That is especially so where, as here, plaintiff does not identify any specific misrepresentation,
separate from the alleged contractual obligations, that would plausibly mislead a reasonable con-
sumer.
For those reasons, plaintiff’s reliance on Himmelstein, McConnell, Gribben, Donoghue &
Joseph, LLP v. Matthew Bender & Co., Inc., 37 N.Y.3d 169 (2021) is misplaced. Unlike the al-
legations here, Himmelstein involved consumer-facing conduct with broader public implications,
including allegedly deceptive practices directed at numerous tenants in the residential housing
market. See id. at 177–78. By contrast, the amended complaint here arises from a single com-
mercial transaction between two business entities concerning the sale and repair of one piece of
equipment. Moreover, the allegations in Himmelstein concerned deceptive practices that plausi-
bly influenced consumers’ decisions in the marketplace, whereas plaintiff’s allegations here pri-
marily concern defendant’s alleged post-sale failure to repair or replace the machine in accord-
ance with contractual and warranty obligations. Because the conduct at issue here is “unique to
the parties before [the Court],” plaintiff fails to plausibly allege the kind of consumer-oriented
conduct required to state a claim under § 349. Id. at 178.
To be sure, plaintiff alleges that a representative of defendant observed that the issues
plaintiff reported were a “known issue.” Am. Compl. ¶ 17. But the amended complaint does not
plausibly allege that this purported knowledge was conveyed to consumers generally or perhaps
withheld at the point of sale. Nor does it support an inference that such knowledge was embed-
ded in any broader marketing or sales practice directed at the public, or that defendant routinely
concealed such defects from other purchasers.
Without factual allegations supporting a plausible inference that defendant concealed a
known defect from consumers as part of a broader, consumer-oriented practice, this isolated,
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post-sale statement does not constitute materially deceptive conduct under § 349. See N. State
Autobahn, Inc. v. Progressive Ins. Grp. Co., 102 A.D.3d 5, 13 (2d Dep’t 2012) (“The require-
ment that the consumer-oriented conduct be materially misleading limits the availability of [§]
349(a) to cases where the deception pertains to an issue that may bear on a consumer’s decision
to participate in a particular transaction.”). Because plaintiff has not plausibly alleged that any
such omission could have influenced its decision to participate in the transaction, the amended
complaint fails to allege materially deceptive conduct.
Third and finally, plaintiff fails to allege an injury caused by the purportedly deceptive
conduct that is distinct from the damages arising from the alleged breach. To plead an injury un-
der § 349, “a plaintiff must allege that, on account of a materially misleading practice, she pur-
chased a product and did not receive the full value of her purchase.” Orlander, 802 F.3d at 302.
Although the amended complaint identifies harms such as loss of use, repair costs, and financing
charges, Am. Compl. ¶ 47, these alleged injuries flow directly from the asserted defects in the
machine and defendant’s alleged failure to repair or replace it, not from any independent decep-
tive act. In other words, the complaint does not plausibly allege that plaintiff paid a price it oth-
erwise would not have paid, or that it entered into the transaction at all, because of a materially
misleading statement or omission.
This is insufficient as a matter of law. “Although a monetary loss is a sufficient injury to
satisfy the requirement under § 349, that loss must be independent of the loss caused by the al-
leged breach of contract.” Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir. 2009). Rather, a
plaintiff must allege a distinct, deception-based injury, such as that “the price of the product was
inflated as a result of defendant’s deception or that use of the product adversely affected
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plaintiff’s health.” Preira v. Bancorp Bank, 885 F. Supp. 2d 672, 677 (S.D.N.Y. 2012) (quoting
Baron v. Pfizer, Inc., 42 A.D.3d 627, 629 (3d Dep’t 2007)).
Here, the claimed losses, such as loss of use, repair costs, and financing charges, are the
same damages that would be recoverable, if at all, under plaintiff’s contract and warranty theo-
ries. Absent allegations tying those losses to a materially misleading practice, rather than to the
product’s alleged defects or defendant’s performance under the agreement, plaintiff’s § 349
claim cannot stand.
In reaching this conclusion, the Court notes that plaintiff does allege that “defendant en-
gages in a recurring business practice of . . . coercing additional purchases through discounted
trade-ins of defective equipment.” Am. Compl. ¶ 26. However, while “it is well-established that
paying a premium for a product can constitute an actual injury under [] § 349,” Lancaster v. Am.
Textile Co., Inc., 719 F. Supp. 3d 204, 220 (N.D.N.Y. 2024) (Sannes, C.J.), the amended com-
plaint does not allege that plaintiff paid an inflated price for the machine as a result of any mate-
rially misleading act, nor does it allege that plaintiff was induced to enter into the transaction
based on deceptive conduct. Rather, the alleged “coercion” arises from defendant’s post-sale
proposal that plaintiff trade in the machine at a discounted value. Am. Compl. ¶ 20. In the ab-
sence of allegations that plaintiff actually made an additional purchase or otherwise suffered a
deception-based economic injury, this theory is insufficient to state a claim under § 349.
In sum, plaintiff’s amended complaint alleges a private commercial dispute arising from
a single transaction between sophisticated business entities. Plaintiff’s generalized, “upon infor-
mation and belief” allegations of broader misconduct are conclusory and unsupported by factual
detail, and its § 349 claim fails because “the gravamen of its complaint” is harm to plaintiff’s
own interests, not “consumer injury or harm to the public interest.” Medisim, 910 F. Supp. 2d at
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618 (quoting Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir. 1995)).
Moreover, the damages plaintiff seeks are recoverable, if at all, under its contract and warranty
theories and do not constitute a distinct, deception-based injury under § 349. Accordingly, plain-
tiff’s GBL § 349 claim must be dismissed.
V. 	CONCLUSION
Therefore, it is
ORDERED that
1. 	Defendant’s motion to dismiss (Dkt. No. 10) is GRANTED;
2. 	Plaintiff’s GBL § 349 claim is DISMISSED with prejudice; and
3. 	Defendant shall file and serve an answer to the remaining claims in the amended
complaint within FOURTEEN DAYS of the date of this opinion.
The Clerk of the Court is directed to terminate the pending motion and set an answer
deadline accordingly.
IT IS SO ORDERED.
Dated: May 14, 2026
Utica, New York.
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