Background - Nick’s Garage (repair shop) sued Progressive (insurer) as assignee of insured vehicle owners (26 first-party, 11 third-party) alleging underpayment for repairs and deceptive practices under N.Y. Gen. Bus. Law § 349. - Garage asserted breach-of-contract claims (as to First-Party Assignors) for underpayments in categories: labor hours, OEM parts, labor rates, paint/materials, ALLDATA database access, and hazardous-waste disposal. - Garage also asserted § 349 claims that Progressive misrepresented it would pay prevailing labor rates and misled consumers about the right to use the repair shop of their choice. - District court granted summary judgment to Progressive on all claims; on appeal the Second Circuit reviewed de novo and applied Rule 56 burdens. - The court held Progressive’s summary-judgment motion was facially deficient in many respects (failed to identify record evidence negating Garage’s claims) and identified genuine disputes of material fact for several cost categories and the § 349 labor-rate claim. - The Second Circuit affirmed summary judgment as to paint/materials and the claim about consumers’ right to choose repair shops, vacated summary judgment on labor hours, OEM parts, labor rates, ALLDATA access, and hazardous-waste charges, and held the § 349 labor-rate claim is not precluded by N.Y. Ins. Law § 2601. ### Issues | Issue | Plaintiff's Argument | Defendant's Argument | Held | |---|---:|---:|---:| | Breach — labor hours | Progressive underpaid by not allowing sufficient labor hours | Progressive did not identify record evidence disputing Garage’s proofs | SJ denied for labor-hours claims; defendant’s motion was facially insufficient | | Breach — parts (OEM vs non‑OEM) | Non‑OEM parts used/paid by Progressive often insufficient to restore pre‑loss condition | Policy permits payment for non‑OEM parts; Progressive’s payments were reasonable | SJ denied; factual disputes exist whether non‑OEM parts were adequate | | Breach — labor rates | Progressive routinely paid labor rates below prevailing competitive rates | Progressive’s Reference Guide and market agreements show rates are prevailing; Garage lacks admissible proof | SJ denied; genuine dispute whether Progressive’s methodology establishes prevailing rates | | Breach — paint/materials | Garage argues Progressive underpaid for paint/materials | Progressive used estimating software and reasonably determined costs | SJ affirmed for paint/materials — Progressive met its burden; Garage failed to raise genuine dispute | | Breach — ALLDATA & hazardous waste | Charges necessary to perform repairs; thus payable | Progressive contends ALLDATA is overhead and hazardous-waste charges are extraneous | SJ vacated as to BOTH; genuine disputes of fact about whether charges are repair‑specific | | GBL § 349 — labor rates (consumer‑oriented deception) | Progressive misled consumers by representing it would pay prevailing rates while paying less | Progressive disclosed policy terms and estimates; negotiated in good faith | SJ denied as to labor‑rate § 349 claim; actionable and not precluded by Ins. Law § 2601 | | GBL § 349 — right to choose repair shop | Progressive’s practices effectively steer consumers away from chosen shop | Progressive discloses consumers’ right and estimates; no deceptive representations | SJ affirmed for right‑to‑choose claim; objective record shows no deceptive practice | ### Key Cases Cited Celotex Corp. v. Catrett, 477 U.S. 317 (federal summary‑judgment burdens and movant’s obligation to identify record evidence) Anderson v. Liberty Lobby, 477 U.S. 242 (reasonable jury standard for genuine issue of material fact) Oswego Laborers’ Local Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20 (objective standard for GBL § 349 consumer‑oriented, materially misleading conduct) Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47 (insurer conduct can be actionable under GBL § 349 despite Insurance Law scheme) Conboy v. AT & T Corp., 241 F.3d 242 (limits on recasting non‑deceptive statutory violations as GBL § 349 claims) Broder v. Cablevision Sys. Corp., 418 F.3d 187 (GBL § 349 requires independently deceptive conduct, not merely violation of another non‑private statute) * Salzman v. Prudential Ins. Co. of Am., 296 N.Y. 273 (state law can incorporate insurance‑department regulations into insurance contracts)