Opinion
2016–04452 Index No. 605983/15
06-26-2019
Laurie Ann MAGEE–BOYLE, et al., Appellants, v. RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK, et al., Respondents.
Weg and Myers, P.C., New York, N.Y. (Dennis T. D'Antonio and Joshua L. Mallin of counsel), for appellants. O'Toole + O'Toole PLLC, Katonah, N.Y. (Andrew D. O'Toole of counsel), for respondent Reliastar Life Insurance Company of New York. Winget, Spadafora & Schwartzberg, LLP, New York, N.Y. (Steven E. Mellen of counsel), for respondent Eastern Planning, Inc.
Weg and Myers, P.C., New York, N.Y. (Dennis T. D'Antonio and Joshua L. Mallin of counsel), for appellants.
O'Toole + O'Toole PLLC, Katonah, N.Y. (Andrew D. O'Toole of counsel), for respondent Reliastar Life Insurance Company of New York.
Winget, Spadafora & Schwartzberg, LLP, New York, N.Y. (Steven E. Mellen of counsel), for respondent Eastern Planning, Inc.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Timothy S. Driscoll, J.), entered April 15, 2016. The order, insofar as appealed from, granted that branch of the motion of the defendant Reliastar Life Insurance Company of New York which was pursuant to CPLR 3211(a) to dismiss the cause of action to recover damages for breach of contract insofar as asserted against it, and granted that branch of the motion of the defendant Eastern Planning, Inc., which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, that branch of the motion of the defendant Reliastar Life Insurance Company of New York which was pursuant to CPLR 3211(a) to dismiss the cause of action to recover damages for breach of contract insofar as asserted against it is denied, and that branch of the motion of the defendant Eastern Planning, Inc., which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it is denied.
This dispute between the plaintiffs, who are the cotrustees of the Patrick Magee Irrevocable Trust, and the defendants, Reliastar Life Insurance Company of New York (hereinafter Reliastar) and Eastern Planning, Inc. (hereinafter Eastern), arises from Reliastar's cancellation of a universal life insurance policy insuring the life of Patrick J. Magee. The policy was procured through Eastern.
The plaintiffs commenced this action against the defendants seeking, inter alia, damages for breach of contract against Reliastar and damages for negligence and negligent misrepresentation against Eastern arising from the cancellation of the policy.
Reliastar moved, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action to recover damages for breach of contract insofar as asserted against it, and Eastern moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it. The Supreme Court granted those branches of the motions.
The plaintiffs sufficiently alleged a cause of action to recover damages for breach of contract against Reliastar (see CPLR 3211[a][7] ). On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be construed liberally, the factual allegations in the complaint must be deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" ( EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 ).
"The essential elements of a breach of contract cause of action are ‘the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach’ " ( Canzona v. Atanasio, 118 A.D.3d 837, 838, 989 N.Y.S.2d 44, quoting Dee v. Rakower, 112 A.D.3d 204, 208–209, 976 N.Y.S.2d 470 ). Applying these principles here, we find that, within its four corners, the complaint sufficiently alleges the elements of a breach of contract cause of action against Reliastar necessary to survive a motion to dismiss pursuant to CPLR 3211(a)(7) (see Dee v. Rakower, 112 A.D.3d at 208, 976 N.Y.S.2d 470 ).
Moreover, that branch of Reliastar's motion which was pursuant to CPLR 3211(a)(1) should have been denied. "To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v. Decolator, 121 A.D.3d 845, 847, 994 N.Y.S.2d 368 ; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ). "In order for evidence to qualify as ‘documentary,’ it must be unambiguous, authentic, and undeniable" ( Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 996–997, 913 N.Y.S.2d 668 ; see First Choice Plumbing Corp. v. Miller Law Offs., PLLC, 164 A.D.3d 756, 757, 84 N.Y.S.3d 171 ; Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569 ). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" ( Fontanetta v. John Doe 1, 73 A.D.3d at 84–85, 898 N.Y.S.2d 569 [internal quotation marks omitted] ). "Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence" ( 25–01 Newkirk Ave., LLC v. Everest Natl. Ins. Co., 127 A.D.3d 850, 851, 7 N.Y.S.3d 325 ; see Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807, 60 N.Y.S.3d 67 ; Prott v. Lewin & Baglio, LLP, 150 A.D.3d 908, 909, 55 N.Y.S.3d 98 ; Gawrych v. Astoria Fed. Sav. & Loan, 148 A.D.3d 681, 682, 48 N.Y.S.3d 450 ). Here, in support of that branch of its motion which was pursuant to CPLR 3211(a)(1), Reliastar submitted the policy and certain policy notices, which, according to Reliastar, refuted the plaintiffs' contention that the policy cancellation was the result of Reliastar's breach of its obligations under the policy. The policy notices, however, were, in effect, letters, which fail to meet the requirements for documentary evidence within the meaning of CPLR 3211(a)(1) (see Prott v. Lewin & Baglio, LLP, 150 A.D.3d at 910, 55 N.Y.S.3d 98 ; Gawrych v. Astoria Fed. Sav. & Loan, 148 A.D.3d at 682, 48 N.Y.S.3d 450 ). Under the circumstances, Reliastar did not conclusively establish a defense as a matter of law or utterly refute the plaintiffs' factual allegations (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ).
With respect to that branch of Eastern's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it for failure to state a cause of action, we disagree with the Supreme Court's determination that the complaint failed to state a cause of action for negligence and negligent misrepresentation against Eastern. Accepting the allegations in the complaint as true and affording the plaintiffs the benefit of all favorable inferences that flow therefrom, the complaint adequately alleged causes of action to recover damages against Eastern for negligence (see Marasco v. C.D.R. Elecs. Sec. & Surveillance Sys. Co., 1 A.D.3d 578, 580, 768 N.Y.S.2d 18 ; Gordon v. Muchnick, 180 A.D.2d 715, 579 N.Y.S.2d 745 ) and negligent misrepresentation (see Lamberti v. Plaza Equities, LLC, 161 A.D.3d 837, 839–840, 77 N.Y.S.3d 420 ; Simmons v. Allstate Indem. Co., 112 A.D.3d 611, 975 N.Y.S.2d 899 ).
RIVERA, J.P., CHAMBERS, DUFFY and IANNACCI, JJ., concur.