Head v. Emblem Health

2017 NY Slip Op 8483, 156 A.D.3d 424, 64 N.Y.S.3d 518, 2017 WL 6001676

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 2017
• Docket: 5132 161536/14
• Status: Published

Opinion

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered October 11, 2016, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to dismiss the causes of action for fraud and bad faith breach of insurance contract, unanimously affirmed, without costs.

In support of the fraud causes of action, the complaint fails to allege sufficient facts to establish the element of a material misrepresentation (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). While the Attorney General’s investigation documented numerous instances of defendants’ misconduct, contrary to plaintiff’s contention, it did not detail instances of fraud. Plaintiff’s allegation that defendants entered into the insurance contract with an undisclosed intention not to perform in accordance with the contract’s terms is insufficient to establish a misrepresentation or a material omission (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995]). The fraud causes of action were correctly dismissed as duplicative of the breach of contract cause of action (see Coppola v Applied Elec. Corp., 288 AD2d 41, 42 [1st Dept 2001]).

There is no independent cause of action for bad faith breach of insurance contract arising from an insurer’s failure to perform its obligations under an insurance contract (see Orient Overseas Assoc. v XL Ins. Am., Inc., 132 AD3d 574 [1st Dept 2015]; McGowan v Great N. Ins. Co., 78 AD3d 1137 [2d Dept 2010]).

Concur—Richter, J.R, Manzanet-Daniels, Andrias, Kern and Singh, JJ.