Justice Shirley Werner Kornreich
Sirius XM Radio moved to dismiss the complaint in this putative class action. Plaintiffs asserted claims under General Business Law §349 and breach of contract. Sirius sought dismissal for lack of subject matter jurisdiction as a prior decision by the District Court, holding that Kaufman and non-New York residents could not maintain a claim under §349, eliminated diversity jurisdiction. The district court adhered to its prior decision after plaintiffs moved for reconsideration and dismissed the remaining claims. Plaintiffs filed this complaint 10 months later alleging claims, the court noted, which were previously dismissed, including GBL §349. Plaintiffs argued the dismissed federal action tolled the statute of limitations citing Am. Pipe & Const. v. Utah, which held the commencement of a class action suspended applicable limitation periods as to all asserted class members who would have been parties if the suit was allowed to continue as a class action. The court stated Am. Pipe only tolled the claims of non-parties to the class action, and did not obviate the requirement that plaintiffs from the dismissed federal action must make sure their new state case was timely under state law. It ruled plaintiffs did not comply with CPLR 205(a), concluding the §349 claim was time-barred.
