| Maple House, Inc. v Alfred F. Cypes & Co., Inc. |
| 2011 NY Slip Op 00360 [80 AD3d 672] |
| January 18, 2011 |
| Appellate Division, Second Department |
| Maple House, Inc., Appellant, v Alfred F. Cypes & Co.,Inc., et al., Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Nancy Quinn Kobaof counsel), for respondents.
In an action, inter alia, to recover damages for fraud, a violation of General Business Law§ 349, and, in effect, negligent procurement of an insurance policy, the plaintiff appealsfrom (1) an order of the Supreme Court, Rockland County (Nelson, J.), entered August 24, 2009,which granted the defendants' motion for summary judgment dismissing the complaint, and (2) ajudgment of the same court entered September 25, 2009, which, upon the order, is in favor of thedefendants and against it dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
To the extent that the fourth cause of action can be construed as one alleging negligentprocurement of an insurance policy, it was properly dismissed because, under the circumstanceshere, the plaintiff was conclusively presumed to have read and assented to the policy's terms (see Stilianudakis v Tower Ins. Co. ofN.Y., 68 AD3d 973, 974 [2009]; see also Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d 392,394 [2006]; Busker on Roof Ltd. Partnership Co. v Warrington, 283 AD2d 376, 377[2001]; cf. Reilly v Progressive Ins. Co., 288 AD2d 365, 366 [2001]; Kyes vNorthbrook Prop. & Cas. Ins. Co., 278 AD2d 736, 737-738 [2000]; Mets Donuts vDairyland Ins. Co., 166 AD2d 508, 509 [1990]). Similarly, the third cause of action, allegingfraud, was properly dismissed, as the plaintiff could not [*2]havejustifiably relied on any alleged misrepresentation (see generally Spitz v Klein, 33 AD3d 988, 990 [2006];McGovern v Best Bldg. & Remodeling, 245 AD2d 925, 927-928 [1997]).
The fifth cause of action, alleging a violation of General Business Law § 349, wasproperly dismissed because it was not predicated upon an act or practice that was misleading in amaterial way (see generally Wilner vAllstate Ins. Co., 71 AD3d 155 [2010]; Lonner v Simon Prop. Group, Inc., 57 AD3d 100 [2008]), or an actor practice that was "consumer oriented" (Gaidon v Guardian Life Ins. Co. of Am., 94NY2d 330, 344 [1999]; see Oswego Laborers' Local 214 Pension Fund v Marine MidlandBank, 85 NY2d 20, 24-25 [1995]; Emergency Enclosures, Inc. v National Fire Adj. Co., Inc., 68 AD3d1658 [2009]; Continental Cas. Co.v Nationwide Indem. Co., 16 AD3d 353 [2005]; Fulton v Allstate Ins. Co., 14 AD3d 380 [2005]; Martin v Group Health, 2 AD3d414 [2003]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Dickerson, Lott andSgroi, JJ., concur.