| Walker v George |
| 2012 NY Slip Op 05627 [97 AD3d 741] |
| July 18, 2012 |
| Appellate Division, Second Department |
| Alicia Walker, Appellant, v Tiffany A. George et al.,Defendants, and Progressive Corporation, Respondent. |
—[*1] Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina of counsel), forrespondent.
In an action, inter alia, to recover damages for personal injuries and breach of the covenant ofgood faith and fair dealing implied in an insurance contract, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Solomon, J.), dated July 13, 2011, which granted the motionof the defendant Progressive Corporation pursuant to CPLR 3211 (a) (7) to dismiss the complaintinsofar as asserted against it for failure to state a cause of action.
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted the motion of the defendant Progressive Corporation(hereinafter Progressive) pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar asasserted against it for failure to state a cause of action. The complaint fails to state a cause ofaction to recover damages based on Progressive's alleged violation of the covenant of good faithand fair dealing implied in the insurance contract issued to the defendant Charles Robertson(see generally Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 452-454 [1993]; CBLPath, Inc. v Lexington Ins. Co., 73AD3d 829, 830-831 [2010]). With regard to the plaintiff's allegations that Progressiveengaged in fraudulent conduct, the complaint fails to allege any injury or damages sustained as aproximate result of Progressive's alleged fraudulent conduct (see generally Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d553, 559 [2009]; New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995];Introna v Huntington Learning Ctrs.,Inc., 78 AD3d 896, 898 [2010]; Daly v Kochanowicz, 67 AD3d 78, 89 [2009]).
The plaintiff's new theory of liability, which was not raised before the Supreme Court, isimproperly raised for the first time on appeal and will not be addressed (see Pierre v Lieber, 37 AD3d 572,573 [2007]; Wheeler v Town of Hempstead, 238 AD2d 580, 581 [1997]; Gordon vHong, 126 AD2d 514, 514 [1987]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Angiolillo, J.P., Dickerson, Leventhal and Chambers, JJ., concur.