NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ILENE STERN, on behalf of herself and 

all others similarly situated, 

 Plaintiffs,

v.

MAIBEC INCORPORATED,

 Defendants.

Civil Action No. 3:11-cv-03951 (PGS)

MEMORANDUM AND ORDER 

SHERIDAN, U.S.D.J. 

This matter comes before the Court on Defendant Maibec Incorporated's ("Maibec")

motion to dismiss Plaintiff's New York General Business Law ("NYGBL") Section 349 claim in

the Second Amended Complaint ("SAC"). Maibec brings its motion to dismiss for failure to state 

a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). 

(ECF No. 37). 

On July 8, 2011, James Vander Veer, formerly named plaintiff in this matter, filed a 

complaint on behalf of himself and all others similarly situated against Maibec. On September 

23, 2011, Vander Veer filed a First Amended Complaint ("FAC") (ECF No. 9), which added 

Ilene Stern as a named plaintiff. On October 5, 2011, Vander Veer filed a notice of voluntary 

dismissal (ECF No. 12). As such, the only named plaintiff in this matter is Ilene Stem. On 

November 5, 2012, this Court issued a Memorandum and Order granting in part and denying in 

part Maibec's motion to dismiss the FAC. (ECF No. 27). Subsequently, on January 15, 2013, 
Stern filed the Second Amended Complaint. (ECF No. 31). Maibec filed the instant motion to 

dismiss Plaintiffs NYGBL Section 349 claim. For the reasons set forth below, the Court denies

Maibec's motion to dismiss.

I.

Plaintiff brings this action on behalf of herself, a purchaser of Maibec shingles, and a

class of similarly situated property owners against Maibec. Maibec is a Canadian corporation 

with its principal place of business in Quebec, Canada. Maibec is the leading manufacturer of 

cedar shingles in North America and Canada's leading manufacturer of wood siding. Plaintiff 

alleges that, at all times relevant to this matter, Maibec was engaged in the business of designing, 

developing, manufacturing, distributing, marketing, selling, and installing of wood shingles that 

have been installed in numerous homes, offices, buildings, and other structures throughout the 

United States, including in New Jersey and New York. 

According to Plaintiff, Maibec's shingles have, until recently, generally been considered

to be very high quality. Contrary to Maibec's representations and its warranty, its shingles are 

allegedly plagued by design flaws that result in decay, including warping, peeling, cracking, 

buckling and curling. Maibec continues to sell them to the public and allegedly continues to 

make false representations and warranties, despite the fact that the shingles allegedly deteriorate 

well before the warranty expires which causes property damage. Plaintiff claims that Maibec 

advertised and made false and misleading representations about the reliability and dependability 

of its shingles. 
According to Plaintiff, Maibec's representations were false and misleading because: (1)

Maibec knows that its shingles are defective, will fail in a fraction of the time that they are 

guaranteed for, and are not fit for their intended purpose; and (2) Maibec consistently fails to 

honor its warranty obligations. Plaintiff further alleges that Maibec knowingly and intentionally 

concealed and failed to disclose that -- notwithstanding statements on its website, brochures, 

advertisements and warranties -- its shingles routinely warp, peel, crack, buckle and curl far in 

advance of the expiration of the warranty period. Further, despite Maibec's representations, the

grain orientation on its shingles was of "flat orientation," consistent with the orientation of the

lowest quality shingles on the market. 

Stern, a resident of Syosset, New York, purchased Maibec shingles from an authorized

dealer and had them installed on her home by a reputable contractor in 2008. Plaintiff claims that 

she selected Maibec shingles over Maibec' s competitors because Maibec' s wood shingles were 

represented to be "maintenance free" and of superior quality. In summer 2011, Stern noticed that 

many of the shingles installed on her house which were exposed to direct sunlight were cupping 

and buckling, with the unpainted undersides of some shingles having become exposed. She 

alleges she suffered damage to the underlying structure of her home where the shingles are 

cupping and/or buckling, thereby diminishing the value of her home. 

Plaintiff alleges three other instances where the shingles were defective. Those instances 

are as follows:

1) David Bashaw hired a contractor to install Maibec shingles on a condominium 

complex in Rhode Island (para. 46). Barkaw observed that the shingles were curling and 

buckling (para. 47), and Maibec refused to honor its warranty (para. 49);
2) Vander Veer’s company hired a contractor to install Maibec shingles on a residence 

in New Jersey. The Maibec shingles curled and lifted away from the house (para. 58); and

3) Falcone Contracting purchased Maibec shingles for a renovation project. Within

days of installation, the shingles “were warping” and some “decayed” [and] “cracked.” (para. 

73). 

Plaintiff's NYGBL Section 349 claim alleges that Maibec willfully and knowingly

committed unfair and deceptive trade practices. Plaintiff further alleges that Maibec knew or 

reasonably should have known during design, marketing, manufacturing, testing and selling its 

shingles were subject to early failure. In addition, Plaintiff claims that Maibec refused to honor 

its warranties or otherwise remedy its defects. In addition, Maibec failed to advise consumers 

regarding the use and potential problems associated with its shingles. According to Plaintiff, 

Maibec intended to and did deceive and mislead consumers through its illusory warranties, 

marketing, promoting and advertising of the shingles, regarding material facts, by causing them 

to believe that the shingles were a merchantable, viable and warrantable Maibec product, when 

they in fact were not. Plaintiff further alleges that Maibec, in the course of business, conducted 

actions that were consumer oriented and affected more than one consumer. According to

Plaintiff, Maibec's conduct represents unfair acts or practices that have the capacity to deceive

consumers, have deceived consumers, and continue to deceive consumers. As a direct and 

proximate result of these unfair and deceptive trade practices, Stern claims that she have been 

damaged as alleged in the Second Amended Complaint
II.

On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure, the Court is required to accept as true all allegations in the

Complaint and all reasonable inferences that can be drawn therefrom, and to view them in the

light most favorable to the non-moving party. See, e.g., Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-

50 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint should be

dismissed only if the alleged facts, taken as true, fail to state a claim. Iqbal, 129 S. Ct. at 1950.

While a court will accept well-pled allegations as true for the purposes of the motion, it 

will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping 

legal conclusions cast in the form of factual allegations. Iqbal, 129 S. Ct. at 1949.

The Supreme Court has held that "[w]hile a complaint attacked by a Rule 12 (b)(6)

motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the

'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do . . .. Factual allegations must be 

enough to raise a right to relief above the speculative level . . . on the assumption that all the

allegations in the complaint are true (even if doubtful in fact) . . . " Twombly, 550 U.S. at 555

(internal citations and quotations omitted); see also Iqbal, 129 S. Ct. at 1949-50.

III.

The New York Consumer Protection Act, codified at Section 349 of the NYGBL,

declares that "[d]eceptive acts or practices in the conduct of any business, trade or commerce or

in the furnishing of any service" in New York are unlawful. "To make out a prima facie case

under Section 349, a plaintiff must demonstrate that (1) defendant's deceptive acts were directed
at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured

as a result." Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000) (per curiam) (citing

Oswego Laborers' LocaL 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25 (1995)).

The New York Court of Appeals defines "misleading," as one which is "likely to mislead a 

reasonable consumer acting reasonably under the circumstances." Cohen v. JP Morgan Chase & 

Co., 498 F.3d 111, 126 (2d Cir. N.Y. 2007) (citing Oswego Laborers' Local 214 Pension Fund, 

85 N.Y.2d at 26). The "determinative issue [of a NYGBL Section 349 claim] is whether a 

plaintiff has set forth enough facts to support the contention that the alleged deceptive act or

practice plausibly could have occurred." Woods v. Maytag Co., 2010 U.S. Dist. LEXIS 116595,

*43-*44 (S.D.N.Y. 201 0) (internal citation and quotations omitted). Conclusory allegations have

been held insufficient to state a claim under Section 349. Id. at *44 (internal citations omitted).

When the "most significant contentions are made on information and belief, plaintiffs will fail to

set forth a cause of action" under NYGBL Section 349. Id. at *43 (internal citation and quotation 

omitted). To establish such plausibility, a Plaintiff is required to set forth specific details 

regarding the allegedly deceptive acts or practices. Tinlee Enters. v. Aetna Casualty & Sur. Co., 

834 F. Supp. 605, 609-10 (E.D.N.Y. 1993)). This Court, in a Memorandum and Order dated 

November 5, 2012 (ECF No. 27), dismissed Plaintiffs NYGBL Section 349 in the FAC without 

prejudice and with leave to replead her NYGBL Section 349 claim. The Court found that the 

most significant allegations concerning Maibec's alleged materially misleading acts and or 

statements were made upon information and belief which fails to establish their plausibility. 

(ECF No. 27, p. 12).

Plaintiff amended the pleadings by asserting facts about the claims of Bashaw, Vander 

Veer and Falcone (see above) which are made upon personal knowledge. 
Defendant’s contention that the allegations are nothing more than additional allegations 

made upon information and belief is incorrect. The Second Amended Complaint alleges facts 

based upon personal knowledge upon which plaintiff relies. These contentions are sufficient to 

meet the Twombly and Iqbal standards. They demonstrate the claim is plausible. 

ORDER

IT IS on this 11th day of September, 2013;

ORDERED that Defendant Maibec Incorporated's ("Maibec") motion to dismiss (ECF 

No. 37) is denied.

s/Peter G. Sheridan 

PETER G. SHERIDAN, U.S.D.J.