Opinion
Index No. 657596/19 15801 Case No. 2021–02336
04-26-2022
James FISCHER, Plaintiff–Appellant, v. CENTENE CORP., et al., Defendants–Respondents.
James Fischer, appellant pro se. Nixon Peabody LLP, Jericho (Christopher J. Porzio of counsel), for respondents.
James Fischer, appellant pro se.
Nixon Peabody LLP, Jericho (Christopher J. Porzio of counsel), for respondents.
Renwick, J.P., Kapnick, Gesmer, Moulton, Shulman, JJ.
Order, Supreme Court, New York County (Melissa Anne Crane, J.), entered on or about February 12, 2021, which granted defendants' motion to dismiss the complaint and denied plaintiff's cross motion for leave to amend the complaint, unanimously affirmed, without costs. Supreme Court correctly dismissed the complaint because plaintiff failed to allege cognizable damages, which is a required element of all the causes of action alleged in the complaint (see e.g. Stutman v. Chemical Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 [2000] ; Kenford Co. v. County of Erie, 67 N.Y.2d 257, 261, 502 N.Y.S.2d 131, 493 N.E.2d 234 [1986] ; NRT Metals, Inc. v. Laribee Wire, Inc., 102 A.D.2d 705, 706, 476 N.Y.S.2d 335 [1st Dept. 1984], lv dismissed 63 N.Y.2d 770 [1984]). Plaintiff's alleged damages, which purportedly arose from defendants' cancellation of his health insurance policy when he inadvertently underpaid a premium, were wholly conjectural and speculative, given the undisputed evidence that the issue was resolved promptly and that plaintiff made no claims under the policy during the brief period that coverage was not in place.
Supreme Court also providently denied plaintiff's motion for leave to amend, since the proposed amended complaint still failed to allege damages, and thus did not cure the fundamental defect in the original complaint (see Murray v. New York, 43 N.Y.2d 400, 404–405, 401 N.Y.S.2d 773, 372 N.E.2d 560 [1977] ; Spitzer v. Schussel, 48 A.D.3d 233, 233, 850 N.Y.S.2d 431 [1st Dept. 2008] ). Furthermore, the new causes of action that plaintiff sought to add were all palpably insufficient and clearly devoid of merit (see MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 500, 901 N.Y.S.2d 522 [1st Dept. 2010] ).
We have considered plaintiff's remaining contentions and find them unavailing.