12-3884-cv
Servedio v. State Farm Ins. 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 database (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 26th
day of August, two thousand thirteen.

PRESENT:
            JOSÉ A. CABRANES,
            PETER W. HALL,
            DENNY CHIN,
                         Circuit Judges.
_____________________________________

DOMINICK SERVEDIO, on behalf of himself and others similarly situated,

                     Plaintiff-Appellant,

                                  v.                                  No. 12-3884-cv

STATE FARM INSURANCE COMPANY,

            Defendant-Appellee.
_____________________________________

FOR PLAINTIFF-APPELLANT:                                HARRY I. KATZ, Law Office of Harry I. Katz,
                                                        P.C., Fresh Meadows, NY.

FOR DEFENDANT-APPELLEE:                                 MICHAEL P. VERSICHELLI, Evan H. Krinick,
                                                        Cheryl F. Korman, Rivkin Radler LLP,
                                                        Uniondale, NY.

        Appeal from the United States District Court for the Eastern District of New York (Frederic
Block, Judge).
       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the September 6, 2012 order of the District Court granting,
on reconsideration, defendant’s motion to dismiss plaintiff’s complaint is AFFIRMED.

         Plaintiff-appellant Dominick Servedio (“plaintiff” or “Servedio”), commenced this putative
class action against defendant-appellee State Farm Insurance (“defendant”) raising claims of
deceptive trade practices and false advertising, in violation of New York General Business Law §§
349, 350 and common law fraud. On September 19, 2011, the District Court granted defendant’s
motion to dismiss all of plaintiff’s claims except his Section 349 claim. See Servedio v. State Farm Ins.
Co., 814 F. Supp. 2d 214, 220 (E.D.N.Y. 2011). Defendant moved for reconsideration of the
District Court’s ruling on the Section 349 claim. On September 6, 2012, the District Court granted
the motion for reconsideration, dismissed plaintiff’s Section 349 claim and dismissed his complaint
in its entirety. See Servedio v. State Farm Ins. Co., 889 F. Supp. 2d 450, 451 (E.D.N.Y. 2012). Plaintiff
then moved for reconsideration of that decision, which the District Court denied. See Servedio v. State
Farm Mut. Auto. Ins. Co., No. 10-CV-1458(FB), 2012 WL 6600317, at *1 (E.D.N.Y. Dec. 18, 2012).
This timely appeal followed. We assume the parties’ familiarity with the facts and procedural history
of this case, to which we refer only as necessary to explain our decision to affirm.

         On appeal, plaintiff claims that the District Court “misapprehended” his Section 349 claim.
Appellant’s Br. 11. We review plaintiff’s challenge to the first reconsideration motion for an abuse
of discretion, see Harris v. Kuhlmann, 346 F.3d 330, 348 (2d Cir. 2003), but note that this appeal also
brings the underlying decision up for review, see “R” Best Produce, Inc. v. DiSapio, 540 F. 3d 115, 121
(2d Cir. 2008). “We review de novo the grant of a motion to dismiss for failure to state a claim upon
which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).” Harris v. Mills, 572 F.3d
66, 71 (2d Cir. 2009). Having conducted a de novo review of the record in light of these principles,
we conclude that the District Court did not err, substantially for the reasons set forth by the District
Court in its decisions of September 6, 2012 and December 18, 2012. See Servedio v. State Farm Ins.
Co., 889 F. Supp. 2d at 452 (“[D]eceived consumers may nevertheless receive—and retain the
benefits of—something of value, even if it is not precisely what they believed they were buying”);
Servedio v. State Farm Mut. Auto. Ins. Co., 2012 WL 6600317, at *1 (“Servedio does not claim that
[defendant] failed to properly provide benefits under the additional [] coverage provision”).

       We have reviewed all of plaintiff’s arguments on appeal and find them to be without merit.
Accordingly, we AFFIRM the September 6, 2012 order of the District Court.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk



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