Randazzo v. Gerber Life Insurance

3 A.D.3d 485, 769 N.Y.S.2d 753

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 2004
• Status: Published

Opinion

In an action to recover damages for a violation of General Business Law § 349, breach of contract, breach of the implied covenant of good faith and fair dealing and unjust enrichment, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J), entered October 15, 2002, which granted the defendant’s motion pursuant to CFLR 3211 (a) (1) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

Fursuant to CPLR 3211 (a) (1), dismissal of the complaint is warranted where the documentary evidence resolves all factual issues as a matter of law and definitively disposes of the asserted claims (see Bank v Lake, 284 AD2d 355 [2001]; Roth v Goldman, 254 AD2d 405 [1998]; Gephardt v Morgan Guar. Trust Co. of N.Y., 191 AD2d 229 [1993]). In the instant case, the plaintiff alleges that the subject insurance policy did not properly disclose that there would be a period of days, weeks, or months during which no coverage existed. However, the policy clearly states when coverage is to begin and when premiums are due. Thus, the Supreme Court properly granted the defendant’s motion to dismiss the complaint.

The plaintiff’s remaining contentions are without merit. Smith, J.P., Luciano, H. Miller and Townes, JJ., concur.