| Dinstber v Allstate Ins. Co. |
| 2013 NY Slip Op 07103 [110 AD3d 1410] |
| October 31, 2013 |
| Appellate Division, Third Department |
| George C. Dinstber III, Appellant, v Allstate InsuranceCompany, Respondent. |
—[*1] Goldberg & Segalla, LLP, Buffalo (Bryan D. Richmond of counsel), forrespondent.
Stein, J. Appeal from an order of the Supreme Court (Rumsey, J.), entered December28, 2011 in Cortland County, which, among other things, granted defendant's motion forpartial summary judgment.
In January 2002, plaintiff notified defendant, his no-fault insurance carrier, that hehad been injured in a motor vehicle accident. Defendant thereafter denied his no-faultclaim, prompting plaintiff to commence this action in which he asserted claims of breachof contract and tort, with a concomitant request for punitive damages. After joinder ofissue, and various motions brought by each party and appeals related thereto (96 AD3d1198 [2012]; 75 AD3d 957 [2010]), defendant moved for summary judgment dismissingplaintiff's tort claim and accompanying demand for punitive damages, alleging that theclaim failed to state a cause of action (see CPLR 3211 [a] [7]). Plaintiffcross-moved for, among other things, leave to amend the complaint. In a December 2011order, Supreme Court granted defendant's motion, dismissed the tort claim and deniedplaintiff's cross motion. On plaintiff's appeal, we now affirm.
Although "damages arising from the breach of a contract will ordinarily be limited tothe contract damages necessary to redress the private wrong, . . . punitivedamages may be recoverable if necessary to vindicate a public right" (New YorkUniv. v Continental Ins. Co., 87 NY2d 308, 315 [1995]), but only where adefendant's conduct was (1) actionable as an independent tort, (2) egregious, (3) directedtoward the plaintiff and (4) part of a pattern directed at the public (see id. at 316;Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613[*2][1994]). Thus, "[w]here a lawsuit has its genesis in thecontractual relationship between the parties, the threshold task for a court considering [a]defendant's motion to dismiss a cause of action for punitive damages is to identify a tortindependent of the contract" (New York Univ. v Continental Ins. Co., 87 NY2dat 316). In this regard, a "defendant may be liable in tort when it has breached a duty ofreasonable care distinct from its contractual obligations, or when it has engaged intortious conduct separate and apart from its failure to fulfill its contractual obligations"(id.). Nonetheless, "where a party is merely seeking to enforce its bargain, a tortclaim will not lie" (id.).
Here, plaintiff seeks an award of punitive damages based upon his allegation thatdefendant engaged in "bad faith tactics" by failing to promptly investigate his no-faultclaim and failing to renew his insurance policy. Such claim does not allege a breach ofduty distinct from defendant's contractual obligations. Further, while plaintiff alleged aviolation of Insurance Law § 2601 based upon defendant's purported failure totimely investigate his no-fault claim, New York does not recognize a private cause ofaction under that statute (see New York Univ. v Continental Ins. Co., 87 NY2d at317-318; Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d at 604; Kantrowitz v Allstate Indem.Co., 48 AD3d 753, 754 [2008]). In light of the foregoing, even if we construethe complaint liberally, accept as true the facts as alleged and accord plaintiff the benefitof every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994];Murray Bresky Consultants, Ltdv New York Compensation Manager's Inc., 106 AD3d 1255, 1258 [2013]; Mesiti v Mongiello, 84 AD3d1547, 1549 [2011]), we concur with Supreme Court that the complaint does notallege a tort existing independently from the parties' contract (see New York Univ. vContinental Ins. Co., 87 NY2d at 320; Alexander v GEICO Ins. Co., 35 AD3d 989, 990 [2006])and, therefore, fails to state a cause of action for punitive damages based upon tortiousconduct.
Nor did Supreme Court abuse its discretion in denying plaintiff's cross motion forleave to amend the complaint, as plaintiff failed to establish that the proposedamendment is not plainly without merit (see Matter of Greece Town Mall, L.P. v New York State, 105AD3d 1298, 1299-1300 [2013]; Vermont Mut. Ins. Co. v Mowery Constr., Inc., 96 AD3d1218, 1219 [2012]; see alsoVectron Intl., Inc. v Corning Oak Holding, Inc., 106 AD3d 1164, 1168 [2013]).Here, plaintiff failed to submit a copy of the proposed amended pleading, and hisconclusory allegations in support of his motion were insufficient to make any evidentiaryshowing that the proposed amendments have merit (see Chang v First Am. Tit. Ins. Co. of N.Y., 20 AD3d 502,502 [2005]). Thus, plaintiff's cross motion was properly denied (see Putney v People, 94 AD3d1193, 1194-1195 [2012], appeal dismissed 19 NY3d 1020 [2012], lvdenied and dismissed 21 NY3d 909 [2013]; McColgan v Brewer, 75 AD3d 876, 878 [2010]).
Rose, J.P., McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.[*3]