Blue Cross & Blue Shield of Western New York, Inc. v. Preferred Assurance Co.

Appellate Division of the Supreme Court of New York

Blue Cross & Blue Shield of Western New York, Inc. v. Preferred Assurance Co.

212 A.D.2d 888, 622 N.Y.S.2d 368, 1995 N.Y. App. Div. LEXIS 1386

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 9, 1995

StatusPublished

This text of 212 A.D.2d 888 (Blue Cross & Blue Shield of Western New York, Inc. v. Preferred Assurance Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Blue Cross & Blue Shield of Western New York, Inc. v. Preferred Assurance Co., 212 A.D.2d 888, 622 N.Y.S.2d 368, 1995 N.Y. App. Div. LEXIS 1386 (N.Y. Ct. App. 1995).

Pincite

Opinion

Casey, J.

Appeal from that part of an order of the Supreme Court (Hughes, J.), entered February 24, 1994 in Albany County, which denied plaintiff’s motion for leave to serve an amended complaint alleging a cause of action for conspiracy.

It is well established in New York that a mere conspiracy to commit a tort is not itself a cause of action (Alexander & [889]*889Alexander v Fritzen, 68 NY2d 968, 969). Plaintiff contends that the allegations of conspiracy merely connect "nonactors”, who might otherwise escape liability, with the tortious acts of one or more of their coconspirators. The amended complaint, however, pleads conspiracy as a separate, distinct and independent cause of action and, therefore, Supreme Court correctly refused to permit the amendment (see, Burns Jackson Miller Summit & Spitzer v Lindner, 88 AD2d 50, 72-73, affd 59 NY2d 314). It is, in any event, clear from the allegations of conspiracy, which largely repeat all of the other allegations of the preceding seven causes of action of the amended complaint, that none of the alleged coconspirators can be characterized as "nonactors”. Rather, plaintiff alleges that as part of the conspiracy each defendant engaged in tortious conduct which, if true, would establish the independent liability of each defendant without the need for any allegations of conspiracy to connect the nontortious acts of separate defendants with an otherwise actionable tort.

Mikoll, J. P., Mercure, White and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.

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Casey, J.

Appeal from that part of an order of the Supreme Court (Hughes, J.), entered February 24, 1994 in Albany County, which denied plaintiff’s motion for leave to serve an amended complaint alleging a cause of action for conspiracy.

It is well established in New York that a mere conspiracy to commit a tort is not itself a cause of action (Alexander & [889]*889Alexander v Fritzen, 68 NY2d 968, 969). Plaintiff contends that the allegations of conspiracy merely connect "nonactors”, who might otherwise escape liability, with the tortious acts of one or more of their coconspirators. The amended complaint, however, pleads conspiracy as a separate, distinct and independent cause of action and, therefore, Supreme Court correctly refused to permit the amendment (see, Burns Jackson Miller Summit & Spitzer v Lindner, 88 AD2d 50, 72-73, affd 59 NY2d 314). It is, in any event, clear from the allegations of conspiracy, which largely repeat all of the other allegations of the preceding seven causes of action of the amended complaint, that none of the alleged coconspirators can be characterized as "nonactors”. Rather, plaintiff alleges that as part of the conspiracy each defendant engaged in tortious conduct which, if true, would establish the independent liability of each defendant without the need for any allegations of conspiracy to connect the nontortious acts of separate defendants with an otherwise actionable tort.

Mikoll, J. P., Mercure, White and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.

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Bluebook (online)

212 A.D.2d 888, 622 N.Y.S.2d 368, 1995 N.Y. App. Div. LEXIS 1386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blue-cross-blue-shield-of-western-new-york-inc-v-preferred-assurance-nyappdiv-1995.

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