Odingo v. Allstate Insurance

251 A.D.2d 81, 672 N.Y.S.2d 727, 1998 N.Y. App. Div. LEXIS 6535

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 1998
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered September 22, 1997, which, in an action by plaintiff insureds against defendant no-fault insurer for breach of contract, breach of the covenant of good faith and fair dealing, and deceptive practices in violation of General Business Law § 349, granted defendant’s motion to dismiss the complaint for failure to state a cause of action with leave to replead, unanimously affirmed, without costs.

The first and second causes of action for breach of contract and breach of the covenant of good faith and fair dealing are duplicative (see, New York Univ. v Continental Ins. Co., 87 NY2d 308, 319-320), and were properly dismissed for failure to allege any policy provision that defendant failed to perform, or defendant’s awareness of the falsity of the. independent medical examinations that were being supplied to it by a nonparty (see, Pernet v Peabody Eng’g Corp., 20 AD2d 781). Plaintiffs’ third cause of action for violation of General Business Law § 349 is also deficient for failure to allege materially deceptive conduct upon which plaintiffs relied to their detriment (see, Gershon v Hertz Corp., 215 AD2d 202). Concur — Sullivan, J. P., Rosenberger, Wallach and Andrias, JJ.