McCarthy v. Weaver

99 A.D.2d 652, 472 N.Y.S.2d 64, 1984 N.Y. App. Div. LEXIS 16901

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 27, 1984
• Status: Published

Opinion

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term properly dismissed the first cause of action against defendant Travelers insofar as it alleged a breach of contract; however, the remaining factual allegations do not state a separate claim for relief and thus should be dismissed with leave to incorporate those allegations in the sixth cause of action if plaintiffs are so advised. Similarly, the seventh cause of action, which purports to state a claim for civil conspiracy, should be dismissed because there is no substantive tort of civil conspiracy in New York (see Danahy v Meese, 84 AD2d 670, 672); nevertheless, plaintiffs should not be precluded from repleading the factual allegations that Travelers and William Weaver acted in concert to defraud plaintiffs. The first and third causes of action against Dorothy Weaver Thompson for breach of contract should be reinstated. In plaintiffs’ “financial obligation-payment arrangement” form which she signed, she indicated that she had insurance but would pay all expenses not covered by the insurance. Additionally, however, she agreed “to pay all costs, charges and expenses of the Hospital of every kind and description” and acknowledged that it was an “original undertaking” on her part. The contract is thus ambiguous and presents a triable issue as to whether the parties intended that Dorothy Weaver Thompson be bound only to the extent that the costs exceeded William Weaver’s insurance benefits or for the entire bill. (Appeals from order of Supreme Court, Onondaga County, Balio, J. — summary judgment.) Present — Dillon, P. J., Callahan, Doerr, Denman and Moule, JJ.