| Nafash v Allstate Ins. Co. |
| 2016 NY Slip Op 02061 [137 AD3d 1088] |
| March 23, 2016 |
| Appellate Division, Second Department |
[*1]
| William Nafash, Jr., Respondent, v AllstateInsurance Company, Appellant, et al., Defendant. |
Votto & Albee, PLLC, Staten Island, NY (Christopher J. Albee of counsel), forappellant.
Debra S. Reiser, New York, NY, for respondent.
In an action, inter alia, to recover damages for breach of an automobile insurancecontract, the defendant Allstate Insurance Company appeals, as limited by its brief, fromso much of an order of the Supreme Court, Kings County (Toussaint, J.), dated April 10,2015, as denied its motion for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the motion of the defendant Allstate Insurance Company for summary judgmentdismissing the complaint insofar as asserted against it is granted.
In his complaint, the plaintiff alleged, among other things, that on March 12, 2009,he purchased an automobile insurance policy from the defendant Allstate InsuranceCompany (hereinafter Allstate). The automobile insurance policy provided coverage forbodily injury liability in the amount of $250,000 per person, and $500,000 peroccurrence. Additionally, the automobile insurance policy contained supplementaryuninsured/underinsured motorists (hereinafter SUM) coverage in the amount of $100,000per person, and $300,000 per occurrence. On June 6, 2009, the plaintiff purchased apersonal umbrella policy (hereinafter PUP) which provided excess insurance coverage of$1,000,000 per occurrence. On September 9, 2009, the plaintiff sustained injuries in amotor vehicle accident with nonparty Nigel Lewis. Thereafter, he commenced an actionagainst Lewis, which was settled in April 2010 for Lewis's full insurance policy limit of$100,000. In the instant action, the plaintiff seeks to recover SUM coverage for hispersonal injuries. Allstate moved for summary judgment dismissing the complaint insofaras asserted against it. The Supreme Court denied the motion.
In support of its motion for summary judgment, Allstate submitted certified copies ofboth the automobile insurance policy and the PUP. In order to be covered againstunderinsured motorists, an insured must purchase optional SUM coverage (seeInsurance Law § 3420 [f] [2]; Matter of Liberty Mut. Ins. Co. vAlberto, 186 AD2d 658, 659 [1992]). When a policyholder purchases SUMcoverage in New York, he or she is insuring against the risk that a tortfeasor "(1) mayhave no insurance whatsoever; or (2) even if insured, is only insured for third-partybodily injury at relatively low liability limits, in comparison to the policyholder's ownliability limits for bodily injury sustained by third-parties" (11 NYCRR 60-2.1 [a]; see Matter of Unitrin Auto &Home Ins. Co. v Gelbstein, 109 AD3d 663, 663-664 [2013]).
[*2] Here, in support of its motion for summary judgment,Allstate demonstrated that the PUP did not include SUM coverage. The plaintiff'scontention that Allstate was estopped from denying SUM coverage based upon itsuntimely disclaimer of coverage is without merit since "[a] disclaimer is unnecessarywhen a claim does not fall within the coverage terms of an insurance policy"(Markevics v Liberty Mut. Ins. Co., 97 NY2d 646, 648 [2001]; see 47 Mamaroneck Ave. Corp. vHartford Fire Ins. Co., 50 AD3d 952, 954 [2008]; Zaccari v Progressive NorthwesternIns. Co., 35 AD3d 597, 599 [2006]).
The SUM endorsement contained in the plaintiff's automobile insurance policycontained coverage limits of $100,000 per person, and further provided, in pertinent part,that "[t]he maximum amount payable under SUM coverage shall be the policy's SUMlimits, reduced and thus offset by motor vehicle bodily injury liability insurance policy orbond payments received from, or on behalf of, any negligent party involved in theaccident." Although the plaintiff's SUM coverage was triggered (see Matter ofPrudential Prop. & Cas. Co. v Szeli, 83 NY2d 681, 686 [1994]), the plaintiffreceived $100,000 from the tortfeasor, which is equal to the limit of the SUM coveragethat he purchased. Consequently, the amount that he was entitled to recover under theautomobile insurance policy's SUM coverage was reduced to zero (see Matter ofUnitrin Auto & Home Ins. Co. v Gelbstein, 109 AD3d at 664; Weiss v Tri-State Consumer Ins.Co., 98 AD3d 1107, 1110-1111 [2012]).
Contrary to the plaintiff's contention, the SUM endorsement contained in hisautomobile policy did not violate Insurance Law § 3420 (f) (2) or 11NYCRR 60-2.1. While an insured has the option of purchasing SUM coverage in anamount up to the bodily injury liability insurance limits of coverage provided under suchpolicy, he or she is not required to purchase SUM coverage at that maximum amount.Neither the statute nor the regulation prohibit insurers from offering SUM coverage withlimits that are less than the bodily injury liability limits of coverage in the policy.
The Supreme Court should have granted the branches of Allstate's motion whichwere for summary judgment dismissing the plaintiff's causes of action alleging fraud andviolation of General Business Law § 349. " 'The essential elementsof a cause of action sounding in fraud are a misrepresentation or a material omission offact which was false and known to be false by defendant, made for the purpose ofinducing the other party to rely upon it, justifiable reliance of the other party on themisrepresentation or material omission, and injury' " (Chung v Wang, 79 AD3d693, 694-695 [2010], quoting Orlando v Kukielka, 40 AD3d 829, 831 [2007]). Theplaintiff's complaint does not allege any specific misrepresentation or omission byAllstate upon which he relied to his detriment (see CPLR 3016 [b]; Dumas v Fiorito, 13 AD3d332 [2004]). Moreover, even assuming that Allstate made a misrepresentation oromission regarding the limits of the SUM coverage being offered to him in order toinduce him to purchase the insurance policies, the plaintiff received the policies monthsbefore he was involved in the accident. An insured is "conclusively presumed to haveread and assented to the terms" of an insurance policy that he or she has received (Loevner v Sullivan & StraussAgency, Inc., 35 AD3d 392, 394 [2006]; see Busker on Roof Ltd.Partnership Co. v Warrington, 283 AD2d 376, 377 [2001]). As such, the plaintiffcannot have justifiably relied upon any misrepresentation or omission regarding hiscoverage once he actually received copies of the automobile insurance policy and thePUP.
"The elements of a cause of action to recover damages for deceptive businesspractices under General Business Law § 349 are that the defendant engagedin a deceptive act or practice, that the challenged act or practice was consumer-oriented,and that the plaintiff suffered an injury as a result of the deceptive act or practice" (Valentine v Quincy Mut. Fire Ins.Co., 123 AD3d 1011, 1015 [2014]). "A party claiming the benefit of GeneralBusiness Law § 349 must, as a threshold matter, charge conduct that isconsumer oriented," i.e., conduct that has a "broad impact on consumers at large" (JP Morgan Chase Bank, N.A. vHall, 122 AD3d 576, 581 [2014] [internal quotation marks omitted]). Here, thealleged misconduct attributed to Allstate was not consumer-oriented, but rather involvedthe terms of insurance contracts unique to the parties (see JP Morgan Chase Bank,N.A. v Hall, 122 AD3d at 581; Wilner v Allstate Ins. Co., 71 AD3d 155, 163 [2010];see also New York Univ. v Continental Ins. Co., 87 NY2d 308, 320[1995]).
[*3] Contrary to the Supreme Court'sdetermination, the motion for summary judgment was not premature. " 'The merehope or speculation that evidence sufficient to defeat a motion for summary judgmentmay be uncovered during the discovery process is insufficient to deny themotion' " (Le Grand vSilberstein, 123 AD3d 773, 775 [2014], quoting Lopez v WS Distrib., Inc., 34AD3d 759, 760 [2006]). Here, the plaintiff failed to offer an evidentiary basis tosuggest that discovery may lead to relevant evidence or that the facts essential to justifyopposition to the motion were exclusively within the knowledge and control of Allstate(see Le Grand v Silberstein, 123 AD3d at 775; Conte v Frelen Assoc., LLC,51 AD3d 620, 621 [2008]).
Accordingly, the Supreme Court should have granted Allstate's motion for summaryjudgment dismissing the complaint insofar as asserted against it. Rivera, J.P., Austin,Sgroi and Barros, JJ., concur.