1 20

- 3726

- cv Milligan v. GEICO General Insurance Co.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic da tabase (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York ,
on the 14 th day of February , two thousand twenty

- two

.

PRESENT: J OSÉ A. C ABRANES
, G ERARD E. L YNCH , D ENNY C HIN , Circuit Judges

.

L ORENA M. M ILLIGAN
, INDIVIDUALLY AND ON

BEHALF OF ALL OTHERS SIMILARLY SITUATED
,

Plaintiff

- Appell ant , 20

- 3726

- cv

v.

GEICO G ENERAL I NSURANCE C OMPANY
, CCC
I NTELLIGENT S OLUTIONS I NC .,
Defendants

- Appellees

.

FOR PLAINTIFF

- APPELLANT: K EITH L. A LTMAN
, The Law Office of Keith Altman, Farmington Hills, MI.

FOR DEFENDANTS

- APPELLEE S : C HERYL F. K O R MAN (Merril S. Biscone, Michael P. Versichelli, Michael P. Welch, on the brief ), Rivkin Radler LLP, Attorneys for GEICO General Insurance Company

, Uniondale , NY.2 S AMIR D EGER

- S EN ( G r egory G. Garre

, Jason R. Burt, Marguerite M. Sullivan, on the brief ) Latham & Watkins LLP, Attorneys for CCC Intelligent Solutions, Inc.

, Washington, DC

.
Appeal from an order of the United States District Court for the Eastern District of New York ( Dora L. Irizarry

, J udge ).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED , AND DECREED that the September 30, 2020 order of t he District Court granting
Defendants’ motions to dismiss be and hereby is AFFIRMED in part insofar as it granted
Defendant CCC’s motion to dismiss in its entirety , and insofar as it granted Defendant GEICO’s motion to dismiss the counts for violation of Regulation 64, negligence, and unjust enrichment . The
District Court’s order is VACATED in part insofar as it granted GEICO’s motion to dismiss the
breach of contra ct and GBL § 349 counts. The cause is therefore REMAND ED to the District
Court with instructions that CCC should be terminated from the action and only the breach of contract and GBL § 349 claims against GEICO should proceed to discovery, or to such other pre

discovery proceedings as the District Court deems necessary.

Lorena M. Milligan (“Plaintiff”) appeals from an order of the District Court granting
motions to dismiss in favor of GEICO General Insurance Co mpany (“GEICO”) and CCC Intelligent Solutions, Inc. (“CCC”) (together, “Defendants”). In March 2015

, Plaintiff purchased a 2015 Lexus for $51,400. 1 Plaintiff insured the vehicle with an automobile insurance policy (the “Policy”) from GEICO. In May 2015, Plaint iff’ s vehicle was totaled in a rollover , and she submitted
an insurance claim

. The vehicle was a “current model year ” vehicle as defined by Title 11, section 216.7 of the New York Codes, Rules and Regulations, known as “Regulation 64.” See N.Y. C OMP

. C ODES R. & R EGS

. (“N.Y.C.R.R.”) tit. 11, § 216.7 (2020)

. Regulation 64 provides that “ total loss es ” for “current model year” vehicle s require the insurer to pay “the reasonable purchase price to the insured on the date of loss of a new identical vehicle,” less certain applicable reductions f or depreciation based on the number of miles driven by the lost vehicle

. Id. § 216.7(c)(3).

GEICO contracts with CCC to provide vehicle valuations

, and CCC provided GEICO with

a so

- called “ ONE Market Valuation Report ” (an “MVR”), in which it “compared Plaintiff’s current model year vehicle . . . with three similar dealer v ehicles that were available or recently sold in the marketplace at the time of valuation.” App’x 465 (internal quotation marks omitted). The MVR

1 Though the actual exhibit in the Record on Appeal to which the parties cite the original purchase price is illegible,

see 2:16

- cv

- 240 Dkt. No. 37

- 1 (illegible), the parties do not appear to contest the amount. Compare Pl. Br. at 1 with GEICO Br. at 11.3 valu ed Plaintiff’s vehicle at $45,924, and GEICO issued a claim payment for that amount to
Plaintiff.

On January 15, 2016, Plaintiff filed her I nitial C omplaint in this putative class action against
Defendants in the District Court (Joan M. Azrack, Judge )

. Pl aintiff articulated six counts in the complaint: (1) breach of contract; (2) violation of Regulation 64; (3) negligence; (4) unfair and deceptive trade practices in violation of New York General Business Law (“GBL”) § 349; (5) declaratory and injunctive re lief against GEICO; and (6) unjust enrichment. Defendants moved to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Defendants also filed a separate motion to compel Plaintiff to comply w ith the Policy’s appraisal process . Judge Azrack referred the motions to then

- Magistrate Judge Gary R.
Brown who issued a Report and Recommendation (“R&R”).

As to GEICO’s motion to dismiss, the R&R recommended denying the motion for the breach of contract and GBL § 349 claims , but granting it for the Regulation 64, negligence, and unjust enrichment claims.

As to CCC’s motion to dismiss

, the R&R recommended denying the motion for the unjust enrichment and GBL § 349 claims , but granting it for the Regulation 64, negligence, and breach of
contract claims.

As to the Defendants’ demands for declaratory and injunctive relief

, the R&R recommended they be stricken. And as to the Defendants’ separate motion s to compel arbitratio n, Magistrate Judge Brown converted the motions to motions for summary judgment, which he recommended be
denied.

Judge Azrack adopt ed the R&R in an order issued on March 31, 2018 and granted Plaintiff leave to replead. 2

Plaintiff filed her operative A m ended C omplaint on May 7, 2018

. Plaintiff articulated the
same six counts as in her I nitial C omplaint and

, apart from certain language specifying a theory that Plaintiff was a “third party beneficiary” t o GEICO’s contract with CCC added to the breach of

co ntract c ount , the Initial and Amended Complaint were nearly identical (giving rise to the “law of the case” arguments discussed in Part IV of this order). Compare App’x 15

- 3 0 with App’x 461

- 78. Defendants again moved to dismiss for failure to state a claim. The District Court (Irizarry, J udge ) granted Defendants’ motions in their entirety, dismissing Plaintiff ’ s action with prejudice

.

2 Defendants brought an interlocutory appeal from the denial of their motions to compel arbitration. We affirmed. Milligan v. CCC Info. Servs. Inc. , 920 F.3d 146, 154 (2d Cir. 2019)

.4 Plaintiff appeals the District Court’s dismissal of the breach of contract, GBL § 349, and injunctive relief counts as to both Defendants

. 3 Plaintiff also argues on appeal that the District Court’s order violated the law of the case doctrine, and that she should have been given leave to replead. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

DISCUSSION

“We review de novo a district court’s grant of a motion to dismiss, accepting as true all factual allegations in the complaint and drawing all reasonable inferences in favor of the plaintiff [] .” Muto v. CBS Corp. , 668 F.3d 53, 56 (2d Cir. 2012) . We review both a district court’s application of the law of
the case doctrine and its denial of leave to amend for abuse of discretion. Devilla v. Schriver , 245 F.3d 192, 198 (2d Cir. 2001) (law of the case); ATSI Commc ’ ns, Inc. v. Shaar Fund, Ltd.

, 493 F.3d 87, 108 (2d Cir. 2007) (leave to amend)

.

I. Breach of Contract

a. GEICO

To make out a breach of contract claim , a plaintiff must plead “(1) the existence of an agreement, (2) adequate performa nce of the contract by the plaintiff, (3) breach of contract by the defendant, and (4) damages.” Harsco Corp. v. Segui , 91 F.3d 337, 348 (2d Cir. 1996)

. Regulation 64 is
“deemed to be part of an insurance contract as though written into it

. ” Trizzano v. Al lstate Ins. Co. , 7 A.D.3d 783, 785 ( 2d Dep’t 2004) ( cleaned up ). Plaintiff therefore claims that GEICO breached the Policy by failing to comply with Regulation 64 . The regulation provides in pertinent part that:

If the insured vehicle is a private passenger automobile of the current model year, the insurer shall pay to the insured the reasonable purchase price to the insured on the date of loss of a new identical vehicle, less any applicable deductible and an allowance for depreciation in accordance with the schedule below

. . . .
11 N.Y.C.R.R. § 216.7(c)(3). The question, then, is the meaning of the phrase “reasonable purchase price . . . of a new identical vehicle” within the context of Regulation 64, and how such a price must be determined.

The D istrict Court based its interpretation of this phrase on the next paragraph of the regulation, § 216.7(c)(4). That paragraph provides that if an in sured notifies her insurer that she

3 Plaintiff appears to abandon the Amended Complaint’s claims of negligenc e, unjust enrichment, and violation of Regulation 64. And while she still claims she is entitled to injunctive relief, she also no longer appears to argue for declaratory relief. These arguments are therefore waived. Norton v. Sam’s Club , 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”).5 “cannot purchase a comparable vehicle for the market value

, as determined under the provisions of subparagraph (1)(i), (ii), (iii), or (v) or [ § 216.7(c)(3) ] ,” the insurer must offer the insured certain
alternatives. 11 N.Y.C.R.R. § 216.7(c)(4) (emphases added). Based on this, t he District Court
concluded that “ a ‘ reasonable purchase price ’ is one that would allow the insured to purchase a

‘ comparable vehicle for the market value. ’” Special App’x 7

. GEICO based its payment to Plaintiff

on the MVR , which was derived from three “comparable vehicle(s) available or rece ntly sold in the marketplace

. ” App’x 546 ; see also id. 558

- 61 (comparing vehicles)

. The District Court therefore
concluded that “GEICO complied with Regulation 64” by “issuing a payment reflective of the
market value of Plaintiff’s vehicle

. ” Special App’x 8

.

We only partly agree with the District Court’s interpretation of the statute, and disagree with
its conclusion that , as a matter of law, GEICO complied with Regulation 64. Although the parties’ briefing is not entirely clear, they appear to disagree on the meaning of two different portions of the critical phrase.

First

, Milligan strongly suggests that the direction to the insurer to pay “the reasonable purchase price

. . . of a new identical vehicle” requires , at least as a default, payment of the “sticker price” of the vehicle in the relevant geographical market ( e mphasis added ). Federal law requires manufacturers
to affix a label to any new automobile, prior to shi pment to a dealer, that includes the manufacturer’s suggested retail price (“MSRP”) for the vehicle, the price of any options included on that automobile
not reflected in the MSRP, the transportation fee charged by the manufacturer for transporting the

car to that dealer, and the total of those amounts. 15 U.S.C. § 1232(f). That total is commonly referred to as the “sticker price” of the vehicle. It is commonly understood, however, that the sticker price reflects only the manufacturer’s suggested price, and that it may not be the price most commonly paid for the vehicle, but instead acts as a starting point for bargaining between the dealer and the purchaser. We thus agree with the D istrict C ourt that if Regulation 64 w ere intended to require the
insurer to pay the sticker price of a new vehicle identical to the lost car, it could and would have used that term, and that the “reasonable purchase price” must instead refer to the price that a reasonable buyer and a reasonable seller would agree upon for the purc hase of such a car in the relevant geographic market . That market price may often differ from the sticker price. To the extent that Milligan contends that GEICO violated Regulation 64 simply by asking CCC to survey the market to determine what price was “r easonable,” we reject that contention.

Second

, i t appears that the parties also disagree about the meaning of the word “new” in the disputed phrase . Section 216.7(c)(3) requires that the insured be paid the “reasonable purchase price
of

. . . a new identical vehicle ” ( e mphasis added)

. At oral argument, GEICO’s counsel clarified that it interpret s “new” to mean a vehicle that is new to the customer, in the sens e that it is different from
the customer’s old vehicle destroyed in the accident

. According to GEICO’s formulation, Regulation 64 allows them to compe nsate the customer with the reasonable purchase price for a used replacement vehicle of the same age and w ith the same number of miles on it as the vehicle that was6 lost

. Thus, GEICO argues that Regulation 64 merely requires the insurer to pay the customer, as is usual with respect to insured property, the market value of the car that was destroyed.

We disagree

. If that were the meaning of Regulation 64, the word “new” would add nothing

. T he disputed phrase would have the same meaning without the word “new

, ” because any vehicle purchased to replace the one that was totaled in the accident would be new to the customer. Moreover, the market for cars is generally understood to be subdivided into two segments, represented in common usage by the terms “new” and “used” cars. In our view, a “new identical
vehicle” means precisely what it says in plain English : a brand

- new vehicle of the same make and

m odel , with identical features and almost no miles on the odometer. Accordingly, the “reasonable purchase price of . . . a new identical vehicle” is the price that a reasonabl e buyer would pay to purchase a n identica l, brand new, factory

- fresh car from the local dealership in the normal course of
business

. 4 Insurers may only compensate the insured for less based on the applicable deductible, and
the statutorily permitted depreciation schedule. See § 216.7(c)(3).

There may be several ways to estimate this reasonable purchase price. For example, i nsurers might consult with local dealerships to identify new cars being offered for sale, or the actual transaction price s for new cars that were sold at or ar ound the time of loss. Indeed, the “sticker price” might well be a relevant variable to consider, albeit not a controlling one. To the extent no
“identical” cars were sold within the relevant geographic area reasonably near to the time of the loss,
insurer s may be able to extrapolate a reasonable purchase price from the sale price of nearly identical

cars with the aid of a professional appraiser . But regardless of the precise metes and bounds of what
is permitted when computing the “reasonable purchase pric e . . . of a new identical vehicle,” Plaintiffs have plausibly alleged that the MVR prepared in the present case was fundamentally
deficient.

T he MVR itself contains multiple indications that the value it calculate d for Plaintiff’s vehicle
differs from the value that Regulation 64 requires insurers to pay. See e.g. , App’x 546 (explaining that comparable vehicles may be “ recently sold in the marketplace” without reference to time of loss ) (emphasis added); id. 559 (showing that all the comparable veh icles were used cars , and two had more than 10,000 miles on them); id. 560 (showing all comparable vehicles as priced in N ew J ersey rather than N ew Y ork ). Moreover, CCC candidly acknowledged at oral argument that it had contracted with GEICO to appraise th e reasonable value of Milligan’s car at the time of the loss. It may well be the case that the MVR d id , in fact, wind up yielding the reasonable purchase price of a

4 The reference in § 216.7(c)(3) to the “date of the loss” does not change our analysis. That phrase modifies the price

,
n ot the vehicle or its condition; the statute provides for the price on the date of the loss of a “ new identical vehicle,” not the price of a vehicle identical to the lost car as it existed on the date of the loss

. The price of such a new car might well be different from what the same car cost at the time the lost vehicle was originally purchased, depending on the proximity to the release of a new model or other vagaries of the marketplace. Accordingly, specifying th at the price is on the date of the loss makes a meaningful difference in determining how much compensation is owed to the insured.7 new identical vehicle. But it is far from apparent that the MVR represents “ the reasonable purchase price to the insured on the date of loss of a new identical vehicle ” as set forth in Regulation 64 , or that it was eve r intended to do so

. At this stage, construing the facts in favor of Plaintiff as we must, her allegation that GEICO failed to comply with Regulation 64 is well

- pleaded.

We therefore vacate the District Court’s order of September 30, 2020 insofar as it granted the motion to dismiss the breach of contract claim against GEICO , and remand it for further proceedings consistent with this order. 5

b. CCC

By contrast, Plaintiff’s breach of contract claim against CCC was properly dismissed

. Plaintiff has no contractual relationship with CCC, so her claim relies on being a third party beneficiary of CCC’s contract with GEICO

. To establish her claim , Plaintiff must plead “ (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended
for h [er] benefit and (3) that the benefit to h [er] is sufficiently immediate, rather than incidenta l, to indicate the assumption by the contracting parties of a duty to compensate h [er] if the benefit is
lost.” Madeira v. Affordable Hous. Found., Inc. , 469 F.3d 219, 251 (2d Cir. 2006) (internal quotation marks omitted). “ [ T]he language of the contract must clearly evidence an intent to permit enforcement by the third party

. ” Consol. Edison, Inc. v. Ne. Utilities , 426 F.3d 524, 528 (2d Cir. 2005) (alteration and internal quotation marks omitted). Here, Plaintiff entirely fails to draw our attention

to any contractual language that would demonstrate an intent to permit third

- party enforcement
under the contract

. See App’x 470

- 71

. The District Court’s dismissal of the breach of contract cl aim against CCC is therefore affirmed.

II. GBL § 349

a. GEICO
GBL § 349 prohibits “ [ d ] eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. G EN

. B US

. L AW § 349(a). To state a
claim under § 349, “a plaintiff must allege that a defendant 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.” Nick’s G arage, Inc. v. Progressive Cas. Ins. Co. , 875 F.3d 107, 124 (2d Cir. 2017) ( internal quotation marks omitted ).

5 Plaintiff’s stand

- alone request on appeal that we “reverse the dismissal of punitive and consequential damages under [the breach of contract count]” is inappropriate. We vacate the District Court’s dismissal of the substantive

count

— for breach of contract against GEICO

— for the reasons stated above. Whether Plaintiff actually prevails on that count, and what damages might at t hat time be appropriate, are matters for the District Court in the first instance on which we express no opinion here.8 The District Court rested its rejection of Plaintiff’s § 349 claims against GEICO primarily on the logic of its breach of contract analysis, name ly that because “ Regulation 64 contemplates the payment of a market value price as a reasonable purchase price ,” it could not be materially misleading for GEICO to pay such a market value price to satisfy a claim. Special App’x 18. But as we have already e xplained, it is not clear at this stage

— with the evidence construed in Plaintiff’s
favor

— that the MVR d id not undervalue P laintiff ’ s claim under Regulation 64

.

The District Court also dismissed the § 349 claim against GEICO because it was not “independent of the loss caused by the alleged breach of contract.” Id. (quoting DiGangi v. Gov’t Employers Ins. Co. , 2014 WL 3644004, at *7 (E.D.N.Y. July 22, 2014 )

. 6 On appeal, GEICO attempts to reinforce th e notion that “[a] lthough a monetary loss is a sufficient injury to satisfy the requirement under § 349, that loss must be independent of the loss caused by the alleged breach of

contract. ” GEICO Br. at 48 (quoting Sp agnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir. 2009) ). See also Sokoloff v. Town Sports Int ’ l Inc. , 6 A.D.3d 185, 186 ( 1st Dep’t 2004) (rejecting a GBL § 349 claim where “[p] laintiff does not claim any kind of monetary loss other than payment of her membership
fees ” ).

However, as we made clear most recently in Nick ’ s Garage, Inc. v. Progressive Cas ualty Ins urance Co.

, the Spagnola and Sokoloff cases “ d o not establish . . . a requirement ” that a plaintiff “allege an injury [under § 349] independent of their contract damages.” 875 F.3d at 125 (emphasis added). Instead,
those cases stand for the proposition that no § 349 claim exists “ where the plaintiffs allege [] damages in the amount of the purchase price of their contracts, but fail [] to allege that defendants ha [ve] denied them the services for which they contracted .” Nick ’ s Garage , 875 F.3d at 125 (emphasis added) (quoting Orlander v. Staples, Inc. , 802 F.3d 289, 302 (2d Cir. 2015) (distinguishing Spagnola and Sokoloff ) ). Here, by contrast,
Plaintiff does allege that she was denied the serv ices for which she contracted. As in Nick’s Garage and
Or l ander , “ Plaintiff has alleged both a monetary loss stemming from the deceptive practice and the
Defendant ’ s failure to deliver contracted

- for services .” Orlander , 802 F.3d at 302

.

Nor does it save G EICO’s motion to dismiss that “paying Plaintiff based on C CC’s MVR was fully disclosed.” GEICO Br. at 50. “ The essence of [Plaintiff’s] claims is that Insurer did not
do what its policy said it would do .” Nick ’ s Garage , 875 F.3d at 125 (rejecting a similar disclosure argument). That is, the alleged deception is not that GEICO paid Plaintiff’s claim based on the MVR, but instead that the MVR did not comply with Regulation 64. As in the breach of contract

6 Though the District Court’s order initially appears to reject “Defendants’ contentions that [the § 349] claim is duplicative of other claims” as “without merit,” Special App’x 17, it later takes up those claims as reasons to grant Defendants’ motion. Id. 18 (“ [ T

] his injury arises out of the exact causes and effects Plaintiff alleges in her breach of contract claim, and, as such, is insuf ficient to give rise to a Section 349 claim.” (alterations and internal quotation marks omitted)).9 context, GEICO may yet prove that its alleged practice s w ere not , in fact

, materially misleading . But the contrary is at least well

- pleaded at this stage.

We therefore vacate the District Court’s order of September 30, 2020 insofar as it granted the motion to dismiss the § 349 claim again st Defendant GEICO, and remand it for further proceedings consistent with this order.

b. CCC
The District Court properly dismissed the § 349 claims against CCC because Plaintiff fail ed to allege that CCC engaged in any materially misleading conduct. Plaintiff argues on appeal

— and below, in opposition to CCC’s motion to dismiss

— that by referencing Regulation 64 in its MVR, CCC misleadingly held itself out as “complying with Regulation 64.” Appellant’s Br. at 35 ; s ee App’x
561 ( MVR stating that “ [r] egulations concerning vehicle value include

. . . Regulation 64 ” ). But this

a rgument is entirely absent from Plaintiff’s A mended C omplaint. See id. 474

- 75. And the mere incorporation of the MVR’s factual statement about Regu lation 64 into the Complaint does not make out an argument. “ [ I ] t is axiomatic that the Complaint cannot be amended by the briefs in opposition to a motion to dismiss.” Lazaro v. Good Samaritan Hosp. , 54 F. Supp. 2d 180, 184 (S.D.N.Y. 1999) ( internal quotation marks omitted). Therefore, t he District Court’s dismissal of the § 349 claim against CCC is affirmed.

III. Injunctive Relief
“Count V” of Plaintiff’s Amended Complaint asserts that she was entitled to declaratory and injunctive relief. On appeal, Pl aintiff argues only that the District Court erred by dismissing this
claim for relief and not granting her an injunction. We disagree. “[A] request for injunctive relief is not a separate cause of action

. . . . [R] ather, the injunction is merely the remedy sought for the legal wrongs alleged in the

. . . substantive counts.” KM Enterprises, Inc. v. McDonald , No. 11

- CV

- 5098, 2012 WL 4472010, at *20 (E.D.N.Y. Sept. 25, 2012) (cleaned up)

, aff ’ d

, 518 F. App ’ x 12 (2d Cir. 2013)

. T his count was therefore properl y dismissed for failure to state a claim , and that dismissal is
affirmed

.
IV. “Law of the Case”

Plaintiff’s l aw of the c ase argument

— arising out of the notion that the District Court allowed certain of the claims from her Initial Complaint to survive , but la ter dismissed those same claims from her substantively similar Amended Complaint

— is unavailing. “[T] he doctrine ‘does not rigidly bind a court to its former decisions, but is only addressed to its good sense.’” Colvin v. Keen

, 900 F.3d 63, 68 (2d Cir. 2018) (quoting Zdanok v. Glidden Co.

, 327 F.2d 944, 952

- 53 (2d Cir. 1964) ) . It would have been preferable for the District Court to explicitly acknowledge that it was granting
motion s to dismiss as to counts for which it had previously denied similar motio n s on a nearly
identical complaint and articulate its rationales for doing so . But the law of the case doctrine “generally does not limit a court’s power to reconsider an issue,” and doing so is no abuse of
discretion. In re PCH Assocs. , 949 F.2d 585, 592 (2d Cir. 1991)

.10 V. Leave to Amend
Finally

, Plaintiff argues that the District Court erred by dismissing her claims with out providing leave to amend

. We disagree. Plaintiff made no request for such leave to the District
Court. The “ District Court [i] s under no obligation to provide [a plaintiff] with leave to amend the [] complaint, much less provide such leave sua sponte

. ” Horoshko v. Citibank, N.A. , 373 F.3d 248, 249 (2d Cir. 2004)

. Moreover, in light of our rulings above, this aspe ct of the appeal is moot to the
extent that Plaintiff seeks leave to replead the breach of contract and § 349 claims against GEICO.

CONCLUSION

For the foregoing reasons, we AFFIRM in part the September 30, 2020 order of the District Court, insofar as it gr anted CCC’s motion to dismiss in its entirety, and insofar as it granted GEICO’s motion to dismiss the counts for violation of Regulation 64, negligence, and unjust
enrichment . We VACATE in part the District Court’s order is insofar as it granted GEICO’s

m otion to dismiss the breach of contract and GBL § 349 counts. The cause is therefore
REMANDED to the District Court with instructions that CCC should be terminated from the action and only the breach of contract and GBL § 349 claims against GEICO should pr oceed to discovery, or to such other pre

- discovery proceedings as the District Court deems necessary.

FOR THE COURT: Catherine O’Hagan Wolfe, Cler k of Court