| Genovese v State Farm Mut. Auto. Ins. Co. |
| 2013 NY Slip Op 03453 [106 AD3d 866] |
| May 15, 2013 |
| Appellate Division, Second Department |
| Nicolo Genovese, Appellant, v State Farm MutualAutomobile Insurance Company et al., Respondents, et al.,Defendants. |
—[*1] Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, MichaelP. Versichelli, and Stuart M. Bodoff of counsel), for respondent State Farm MutualAutomobile Insurance Company. Schenk, Price, Smith & King, LLP, New York, N.Y. (John P. Campbell of counsel),for respondents 684 Associates, Ltd., doing business as D&D Associates, HooperEvaluations, Inc., Hooper Holmes, Inc., DDA Management Services, LLC, BrianDarmody, Anthony Minichini, and George Vadyak. Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Ann K. Kandel of counsel), andLeonard J. Tartamella, Hauppauge, N.Y., for respondents Medical Management Groupof New York, Inc., and William Polikoff (one brief filed). Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Elliott J. Zuckerof counsel), for respondent Marlon Seliger.
In an action, inter alia, to recover damages for breach of contract, the plaintiffappeals, as limited by his brief, from so much of an order of the Supreme Court, SuffolkCounty (Cohalan, J.), dated August 31, 2011, as granted the separate motions of thedefendant State Farm Mutual Automobile Insurance Company, the defendants HooperEvaluations, Inc., Hooper Holmes, Inc., 684 Associates, Ltd., doing business as D&DAssociates, DDA Management Services, LLC, Brian Darmody, Anthony Minichini, andGeorge Vadyak, the defendant Stephan Schector, the defendants Medical ManagementGroup of New York, Inc., and William Polikoff, and the defendant Marlon Seliger todismiss the complaint insofar as asserted against each of them pursuant to CPLR 3211(a) (7).
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the motion of the defendant State Farm Mutual AutomobileInsurance Company which was pursuant to CPLR 3211 (a) (7) to dismiss the first causeof action, which alleged breach of contract, and substituting therefor a provision denyingthat branch of the motion; as so [*2]modified, the order isaffirmed insofar as appealed from, with one bill of costs payable by the plaintiff to thedefendants Hooper Evaluations, Inc., Hooper Holmes, Inc., 684 Associates, Ltd., doingbusiness as D&D Associates, DDA Management Services, LLC, Brian Darmody,Anthony Minichini, and George Vadyak, the defendants Medical Management Group ofNew York, Inc., and William Polikoff, and the defendant Marlon Seliger, appearingseparately and filing separate briefs.
A cause of action premised upon fraud cannot lie where it is based on the sameallegations as a cause of action alleging breach of contract (see Yenrab, Inc. v 794 LindenRealty, LLC, 68 AD3d 755 [2009]; Heffez v L & G Gen. Constr., Inc., 56 AD3d 526 [2008]).Where "a claim to recover damages for fraud is premised upon an alleged breach ofcontractual duties and the supporting allegations do not concern representations whichare collateral or extraneous to the terms of the parties' agreement, a cause of actionsounding in fraud does not lie" (Yenrab, Inc. v 794 Linden Realty, LLC, 68AD3d at 757 [internal quotation marks omitted]; see McKernin v Fanny FarmerCandy Shops, 176 AD2d 233, 234 [1991]). Here, the fraud cause of action againstthe defendant State Farm Mutual Automobile Insurance Company (hereinafter StateFarm) is based on the same allegations as the breach of contract cause of action.Accordingly, the Supreme Court properly granted that branch of State Farm's motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the third cause of action, soundingin fraud, insofar as asserted against it.
Further, the Supreme Court properly granted those branches of the separate motionsof the remaining defendants which sought to dismiss the fraud cause of action insofar asasserted against each of them. A cause of action to recover damages for fraud requiresallegations of (1) a false representation of fact, (2) knowledge of the falsity, (3) intent toinduce reliance, (4) justifiable reliance, and (5) damages (see Eurycleia Partners, LP vSeward & Kissel, LLP, 12 NY3d 553, 559 [2009]; Pace v Raisman & Assoc., Esqs.,LLP, 95 AD3d 1185 [2012]). Moreover, CPLR 3016 (b) requires that thecircumstances underlying a cause of action based on fraud be stated "in detail" (see Scott v Fields, 92 AD3d666, 668 [2012]). Here, the allegations of fraud against the remaining defendantseither were bare and conclusory or do not rise to the level of fraud. Consequently, theSupreme Court properly granted those branches of the separate motions of the remainingdefendants which were pursuant to CPLR 3211 (a) (7) to dismiss the third cause ofaction insofar as asserted against each of them.
However, the Supreme Court erred in granting that branch of State Farm's motionwhich was to dismiss the first cause of action, which alleged breach of contract. The firstcause of action contained sufficient factual allegations to state a cause of action torecover damages for breach of contract against State Farm. The complaint alleged,among other things, that the plaintiff entered into an insurance contract for State Farm toprovide the plaintiff with no-fault insurance benefits if he was involved in a car accident,and that State Farm breached the contract by denying coverage for medical services.Since the allegations in the complaint were sufficient to state a breach of contract causeof action, the Supreme Court should have denied that branch of State Farm's motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the first cause of action.
The Supreme Court properly granted that branch of State Farm's motion which waspursuant to CPLR 3211 (a) (7) to dismiss the second cause of action, which soughtconsequential damages for breach of the no-fault insurance benefits policy. Theplaintiff's prolix allegations, when "[s]tripped of their verbiage" (United States Fid. &Guar. Co. v Pressler, 77 NY2d 921, 923 [1991]), do not adequately plead facts thatwould support a finding that his damages for pain and suffering arose out of State Farm'salleged breach of its obligations under its no-fault insurance contract with him (seeid. at 923).
The plaintiff's remaining contention is without merit. Balkin, J.P., Chambers, Romanand Hinds-Radix, JJ., concur.