| O'Keefe v Allstate Ins. Co. |
| 2011 NY Slip Op 09103 [90 AD3d 725] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Patrick O'Keefe et al., Appellants, v Allstate InsuranceCompany et al., Respondents. |
—[*1] Feldman, Rudy, Kirby & Farquharson, P.C., Jericho, N.Y. (Brian R. Rudy of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of an insurance contract, the plaintiffsappeal from an order of the Supreme Court, Nassau County (Woodard, J.), entered September 16,2010, which granted the defendants' motion pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against the defendants Mark Malenczak, David Mateer, and FreidaHicks and to dismiss the third cause of action and so much of the complaint as sought to recoverpunitive damages and an attorney's fee insofar as asserted against the defendant AllstateInsurance Company, and denied their cross motion pursuant to CPLR 3124 to compel discovery.
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against the individualdefendants, Mark Malenczak, David Mateer, and Freida Hicks (hereinafter collectively theindividual defendants), all employees of the defendant Allstate Insurance Company (hereinafterthe insurer), as they cannot, under the circumstances of this case, be held personally liable to theplaintiffs (see Bardi v Farmers Fire Ins. Co., 260 AD2d 783, 787 [1999]; Schunk vNew York Cent. Mut. Fire Ins. Co., 237 AD2d 913, 915 [1997]; Benatovich v PropisAgency, 224 AD2d 998, 998-999 [1996]).
With respect to the complaint insofar as asserted against the insurer, the third cause of actionsounds in fraud but relates directly to the breach of contract claims, in that it alleges that theinsurer's actions were undertaken to avoid paying the plaintiffs the amounts specified in theirinsurance policy. Accordingly, the third cause of action cannot be sustained (see Pepper vHezghia, 307 AD2d 959, 960 [2003]; Schunk v New York Cent. Mut. Fire Ins. Co.,237 AD2d at 913-915; F. Nathanson & Co. v Marinello, 192 AD2d 575 [1993];Manshul Constr. Corp. v City of New York, 143 AD2d 333, 336 [1988]).
Moreover, the Supreme Court properly granted that branch of the motion which was todismiss so much of the complaint as sought an award of an attorney's fee against the insurer. An"insured may not recover the expenses incurred in bringing an affirmative action against aninsurer to settle its rights under the policy" (New York Univ. v Continental Ins. Co., 87NY2d 308, 324 [1995]; see [*2]Mighty Midgets v CentennialIns. Co., 47 NY2d 12, 21 [1979]). Further, punitive damages are not warranted, as "[t]heinsureds failed to set forth any facts or allegations to support their contention that the defendantinsurer['s] conduct was egregious or fraudulent, or that it evidenced wanton dishonesty so as toimply a criminal indifference to civil obligations directed at the public generally. This case is, ineffect, simply a private breach of contract dispute between the insurer[ ] and [its] insureds withno greater implications" (Flores-King vEncompass Ins. Co., 29 AD3d 627 [2006]; see Rocanova v Equitable Life Assur.Socy. of U.S., 83 NY2d 603, 615 [1994]).
The plaintiffs' remaining contentions are either without merit or improperly raised for thefirst time on appeal. Dillon, J.P., Eng, Hall and Austin, JJ., concur. [Prior Case History:2010 NY Slip Op 32571(U).]