| Vescon Constr., Inc. v Gerelli Ins. Agency, Inc. |
| 2012 NY Slip Op 05511 [97 AD3d 658] |
| July 11, 2012 |
| Appellate Division, Second Department |
| Vescon Construction, Inc., Individually and on Behalf of All OthersSimilarly Situated, Appellant, v Gerelli Insurance Agency, Inc., Defendant, and UticaFirst Insurance Company, Respondent. |
—[*1] Farber Brocks & Zane, LLP, Mineola, N.Y. (Audra S. Zane of counsel),for respondent.
In an action, inter alia, to recover damages for unjust enrichment and for a violation ofGeneral Business Law § 349, the plaintiff appeals, as limited by its brief, from so much ofan order of the Supreme Court, Orange County (McGuirk, J.), dated July 5, 2011, as granted thatbranch of the motion of the defendant Utica First Insurance Company which was pursuant toCPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant Utica First Insurance Company (hereinafter Utica First), issued a generalliability insurance policy to the plaintiff, Vescon Construction, Inc. (hereinafter Vescon), whichcontained an exclusion for bodily injury to an employee of an insured if it occurred in the courseof employment. A Vescon employee was injured in the course of his employment at aconstruction project, and the employee commenced an action against Volmar Construction, Inc.(hereinafter Volmar), the general contractor for the project. Volmar then commenced athird-party action against Vescon, a subcontractor on the project, seeking, inter alia,indemnification.
Vescon had requested that Utica First defend and indemnify Volmar in the underlyingpersonal injury action pursuant to the blanket additional insured endorsement in the subjectpolicy. After Utica First denied Vescon's request, Vescon commenced this action against, amongothers, Utica First, inter alia, to recover damages for unjust enrichment and for a violation ofGeneral Business Law § 349. In an order dated July 5, 2011, the Supreme Court grantedthat branch of Utica First's motion which was pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against it.
"In determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the courtmust 'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of everypossible favorable inference, and determine only whether the facts as alleged fit within anycognizable legal theory' " (Henderson vKingsbrook Jewish Med. Ctr., 91 AD3d 720, 721 [2012], quoting Leon vMartinez, 84 NY2d 83, 87-88 [1994]).[*2]
Applying these principles here, the complaint failed tostate a viable cause of action against Utica First to recover damages for a violation of GeneralBusiness Law § 349. "The elements of a cause of action to recover damages for deceptivebusiness practices under General Business Law § 349 are that the challenged act orpractice was a consumer-oriented act or practice that is misleading in a material way, and causedinjury to the plaintiff" (Ludl Elecs.Prods. v Wells Fargo Fin. Leasing, 6 AD3d 397, 398 [2004]; see Wilner v Allstate Ins. Co., 71AD3d 155, 161-162 [2010]; Flax vLincoln Natl. Life Ins. Co., 54 AD3d 992, 994 [2008]). Here, the conduct complained ofis not consumer-oriented within the meaning of General Business Law § 349 (see LudlElecs. Prods. v Wells Fargo Fin. Leasing, 6 AD3d at 398). Rather, "[t]hese allegations,liberally construed, at best show a private contract dispute over policy coverage and theprocessing of [Vescon's] claims, not conduct affecting the consuming public at large, and thus donot state a cause of action under section 349" (Continental Cas. Co. v Nationwide Indem. Co., 16 AD3d 353, 354[2005]).
Further, the cause of action to recover damages for unjust enrichment is a quasi-contractclaim, and therefore, is not viable against Utica First where, as here, the parties entered into anexpress agreement (see Shovak v LongIs. Commercial Bank, 50 AD3d 1118, 1120 [2008]; Morales v Grand CruAssoc., 305 AD2d 647, 647 [2003]).
Accordingly, the Supreme Court properly granted that branch of Utica First's motion whichwas pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it. Balkin,J.P., Leventhal, Roman and Sgroi, JJ., concur.