| Cooper v New York Cent. Mut. Fire Ins. Co. |
| 2010 NY Slip Op 03578 [72 AD3d 1556] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| Sharon Cooper, Respondent, v New York Central Mutual FireInsurance Company, Appellant. |
—[*1] Hogan Willig, Amherst (Jennifer L. Fay of counsel), for plaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Paula L. Feroleto, J.), enteredFebruary 19, 2009 in a breach of contract action. The order denied defendant's motion to dismissthe amended complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion in part and dismissing the second through sixth causes of action and theclaim for punitive damages and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action against her insurer after her claim forproperty damage to her home was denied. Supreme Court properly denied defendant's motion todismiss the amended complaint insofar as defendant contended that the action was barred by thecontractual limitations period in its insurance policy, i.e., two years. Although defendant met itsinitial burden of proof, plaintiff raised an issue of fact whether an exception to the contractuallimitations period applies (see Snyder vAllstate Ins. Co., 70 AD3d 670 [2010]; see also Philip F. v Roman Catholic Diocese of Las Vegas, 70 AD3d765 [2010]). "Construing the amended complaint in the generous light to which it is entitledon a motion to dismiss" (New York Univ. v Continental Ins. Co., 87 NY2d 308, 318[1995], citing Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we conclude that it allegesfacts that, if true, support a determination that defendant should be estopped from relying on thecontractual limitations period because it "engaged in a course of conduct [that] lulled [her] intoinactivity in the belief that [her] claim would ultimately be processed" (Minichello vNorthern Assur. Co. of Am., 304 AD2d 731, 732 [2003]; cf. Gilbert Frank Corp. vFederal Ins. Co., 70 NY2d 966 [1988]; Neary v Nationwide Mut. Fire Ins. Co., 17 AD3d 331 [2005]).
We further conclude that the court properly denied defendant's motion insofar as defendantcontended that dismissal of the amended complaint was warranted based on the alleged willfulfailure of plaintiff to cooperate with its investigation of her claim. An insurer's burden inattempting to disclaim coverage based on an insured's alleged willful lack of cooperation "hasbeen termed a heavy one . . . [*2]and requires ashowing that the insured's attitude was one of willful and avowed obstruction . . .involving a pattern of noncooperation for which no reasonable excuse [is] offered" (Ingarra vGeneral Acc./PG Ins. Co. of N.Y., 273 AD2d 766, 767 [2000] [internal quotation marksomitted]; see Dlugosz v Exchange Mut. Ins. Co., 176 AD2d 1011, 1013 [1991]). Here,although plaintiff admittedly did not provide defendant with all of the documents requested by it,she has offered reasons for failing to do so, and the issue concerning the validity of those reasonscannot be determined as a matter of law on the record before us.
We agree with defendant, however, that the court erred in denying its motion insofar as itsought dismissal of the second through sixth causes of action for failure to state a cause of action(see CPLR 3211 [a] [7]), as well as the claim for punitive damages, and we thereforemodify the order accordingly. The second and third causes of action, for defendant's bad faith inrefusing to settle plaintiff's claim, should have been dismissed because they do not allegeconduct by defendant constituting the requisite "gross disregard of the insured's interests"necessary to support such causes of action (Cappelletti v Unigard Ins. Co., 222 AD2d1029, 1032 [1995] [internal quotation marks omitted]; see Pavia v State Farm Mut. Auto. Ins.Co., 82 NY2d 445, 453 [1993], rearg denied 83 NY2d 779 [1994]). The fourth andfifth causes of action, for fraud, should have been dismissed because they merely restateplaintiff's first cause of action, for breach of contract (see Schunk v New York Cent. Mut.Fire Ins. Co., 237 AD2d 913, 915 [1997]; Eastman Kodak Co. v Roopak Enters.,202 AD2d 220, 222 [1994]).
The sixth cause of action, for the violation of General Business Law § 349, likewiseshould have been dismissed inasmuch as this is a private contractual dispute, "unique to theparties" (Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d20, 25 [1995]), and the statute "was not intended to supplant an action to recover damages forbreach of contract between parties to an arm's length contract" (Teller v Bill Hayes, Ltd.,213 AD2d 141, 148 [1995], lv dismissed in part and denied in part 87 NY2d 937[1996]; see Graham v Eagle Distrib. Co., 224 AD2d 921 [1996], lv dismissed 88NY2d 962 [1996]). Finally, the claim for punitive damages should have been dismissedinasmuch as there is no indication that defendant's alleged conduct was "activated by evil orreprehensible motives" (Gravitt v Newman, 114 AD2d 1000, 1002 [1985]; see 235 E. 4th St., LLC v Dime Sav. Bankof Williamsburgh, 65 AD3d 976 [2009]; Peltier v Wakhloo, 20 AD3d 870, 871 [2005]).Present—Smith, J.P., Centra, Lindley, Sconiers and Pine, JJ.