Sweazey v. Merchants Mut Ins. Co.

26 Citing cases

  1. In re Eurospark Industries, Inc.

    288 B.R. 177 (Bankr. E.D.N.Y. 2003)   Cited 6 times
    Concluding that no fiduciary relationship is created in the first-party insurance context, which simply involves the contractual obligation to pay claims or benefits

    In Kenford Co., a non-insurance case, the court stated the standard as follows: See also Wiener v. Unumprovident Corp., 202 F. Supp.2d 116, 124 n. 6 (S.D.N.Y. 2002) (citing Sweazey v. Merchs. Mut. Ins. Co., 169 A.D.2d 43, 571 N.Y.S.2d 131, 132-133 (N.Y.App.Div. 1991) for the pleading standard for consequential damages in a first-party bad faith case); Sabbeth Indus. Ltd. v. Pa. Lumbermens Mut. Ins. Co., 238 A.D.2d 767, 656 N.Y.S.2d 475, 477 (N.Y.App.Div. 1997) (citing the Kenford Co. pleading standard for consequential damages as being applicable in a first-party bad faith case); Sweazey, 571 N.Y.S.2d at 132 (citing the Kenford Co. pleading standard for consequential damages as being applicable in a first-party bad faith case); Harriman v. Norfolk Dedham Mut. Fire Ins. Co., 172 A.D.2d 585, 568 N.Y.S.2d 820 (N.Y.App.Div. 1991) (stating that plaintiff's claims for consequential damages in that first-party bad faith case were "speculative, remote, and could not have been within the contemplation of the parties at the time of the execution of this insurance contract"); LTS Contractors, Inc. v. Hartford Ins. Co., 99 A.D.2d 644, 472 N.Y.S.2d 222, 223 (N.Y.App.Div. 1984) (stating that the claim for consequential damages in that first-party bad faith cas

  2. Globecon Group, LLC v. Hartford Fire Insurance

    434 F.3d 165 (2d Cir. 2006)   Cited 261 times   2 Legal Analyses
    Reversing district court's grant of summary judgment in part because of inappropriate credibility determination and noting that "credibility, in the ordinary course of things, is for a fact-finder to evaluate"

    There is significant New York authority for the proposition that a party seeking consequential damages must identify specific contractual provisions demonstrating that recovery of such damages was contemplated by the parties. See Sweazey v. Merchants Mut. Ins. Co., 169 A.D.2d 43, 571 N.Y.S.2d 131, 133 (3d Dep't 1991); High Fashions Hair Cutters v. Commercial Union Ins. Co., 145 A.D.2d 465, 535 N.Y.S.2d 425, 427 (2d Dep't 1988). Although some authority suggests that no specific provision is required, see, e.g., Sabbeth Indus. v. Penn. Lumbermens Mut. Ins. Co., 238 A.D.2d 767, 656 N.Y.S.2d 475, 477 (3d Dep't 1997), such damages must, at a minimum, comport with the intent of the parties to the contract. Since — as we have held in §§ I and II of this opinion — New Globecon cannot be treated as a party to the insurance contract which is the basis for this suit, and since New Globecon cannot sue under that original insurance contract for post-transfer damages, the consequential damages sought are not recoverable.

  3. Ripka v. Safeco Ins.

    5:14-CV-1442 (N.D.N.Y. May. 26, 2015)   Cited 4 times   1 Legal Analyses
    Dismissing claim asserted pursuant to various provisions of 11 N.Y.C.R.R. § 216 because regulations "which implement a provision of New York State's Insurance law, do not give rise to any private causes of action[]"

    Indeed, "[a]llegations of breach of an insurance contract, even a breach committed willfully and without justification, are insufficient to authorize recovery of punitive damages." Sweazey v. Merchants Mut. Ins. Co., 169 A.D.2d 43, 46 (N.Y. App. Div. 2d Dep't 1991) (citations omitted).

  4. Hold Bros. v. Hartford Casualty Insurance

    357 F. Supp. 2d 651 (S.D.N.Y. 2005)   Cited 8 times
    Interpreting Brody to hold that express provision permitting damages for lost profits is not prerequisite for obtaining such damages

    See id.See High Fashions Hair Cutters v. Commercial Union Ins. Co., 535 N.Y.S.2d 425, 427 (2d Dep't 1988) (holding that "the plaintiff was not entitled to consequential . . . damages since the policy did not contain a specific provision permitting recovery for such loss); Sweazey v. Merchants Mutual Ins. Co., 571 N.Y.S.2d 131, 132 (3d Dep't 1991) (dismissing plaintiff's claim for consequential damages because the insurance policy "contain[ed] neither provisions nor language which demonstrates that recovery of consequential damages was within the contemplation of the parties"). 73 N.Y.2d 312 (1989).

  5. Lava Trading Inc. v. Hartford Fire Insurance

    326 F. Supp. 2d 434 (S.D.N.Y. 2004)   Cited 30 times
    Holding that an identical provision "speaks only to what constitutes a covered loss under a policy of insurance, and not to what remedies are available for breach of a policy

    Nor does the contract of insurance contain any language which permits recovery for consequential damages.") (emphasis added). Sabbeth is a later Third Department decision than Sweazey v. Merchants Mutual Insurance Co., 169 A.D.2d 43, 45, 571 N.Y.S.2d 131, 132 (3d Dep't 1991), and I must assume that Sabbeth better reflects how the Third Department would rule on the issue. Similarly, Martin is a later Second Department decision than High Fashion Hair Cutters v. Commercial Union Insurance Co., 145 A.D.2d 465, 535 N.Y.S.2d 425 (2d Dep't 1988), and is presumably an accurate statement of that Court's view. Without further guidance from the New York Court of Appeals or the Appellate Divisions, I would apply Kenford to contracts of insurance such as that at issue in this case.

  6. Zurich American Insurance v. ABM Industries, Inc.

    265 F. Supp. 2d 302 (S.D.N.Y. 2003)   Cited 2 times

    In response to the prong of Zurich's motion seeking summary judgment on this claim, ABM has not alleged any breaches of contract that would support a consequential damages claim beyond Zurich's refusal to agree to the very claims that the Court has now held were rightfully rejected. Indeed, even as to these now-rejected claims, let alone any remaining claims, ABM has utterly failed to specify the nature of its alleged consequential damages or adduce competent evidence showing, as required for any such claim, that the consequential damages "were foreseeable and within the contemplation of the parties at the time the contract was made," Martin v. Metro. Prop. Cas. Ins. Co., 656 N.Y.S.2d 318, 318-19 (2d Dep't 1997) (internal quotation marks omitted), quoting Sweazey v. Merchs. Mut. Ins. Co., 571 N.Y.S.2d 131, 132 (3d Dep't 1991). See also Kenford Co. v. County of Erie, 73 N.Y.2d 312, 319 (1989).Sixth, ABM's motion to amend its counterclaim to add a claim that Zurich engaged in bad faith during the course of the litigation must be denied.

  7. Wiener v. Unumprovident Corp.

    202 F. Supp. 2d 116 (S.D.N.Y. 2002)   Cited 45 times
    Holding that New York does not recognize an independent tort action for bad faith denial of insurance coverage

    Ultimately, because plaintiff does not plead facts supporting a demand for consequential damages, we need not reach the question of the availability of consequential damages for bad faith denial of coverage under New York law. See Sweazey v. Merchants Mutual Ins. Co., 169 A.D.2d 43, 45, 571 N.Y.S.2d 131, 132-33 (3rd Dept. 1991) (noting that in the context of insurance coverage, certain consequential damages may be awarded for breach of contract where such damages were foreseeable and within the contemplation of the parties at the time the contract was made).

  8. Panasia v. Hudson

    2008 N.Y. Slip Op. 1419 (N.Y. 2008)   Cited 112 times   5 Legal Analyses
    Denying motion to dismiss because more fact issues existed regarding whether the parties contemplated the damages sought by Plaintiff at the time or prior to contracting

    White Fleischner Fino, LLP, New York City ( Janet P. Ford and Nancy Davis Lyness of counsel), for appellant. I. Consequential/extracontractual damages based upon an insurer's alleged bad faith breach of its contractual obligations under a policy of insurance are not recoverable by an insured. ( Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603; New York Univ. v Continental Ins. Co., 87 NY2d 308; Brody Truck Rental v Country Wide Ins. Co., 277 AD2d 125; High Fashions Hair Cutters v Commercial Union Ins. Co., 145 AD2d 465; Sweazey v Merchants Mut. Ins. Co., 169 AD2d 43; Martin v Metropolitan Prop. Cas. Ins. Co., 238 AD2d 389; Acquista v New York Life Ins. Co., 285 AD2d 73; Polidoro v Chubb Corp., 354 F Supp 2d 349; USAlliance Fed. Credit Union v CUMIS Ins. Socy., Inc., 346 F Supp 2d 468.) II. Acquista v New York Life Ins. Co. ( 285 AD2d 73) is critically distinguishable from the instant matter in that the Hudson Insurance Company policy contains an explicit exclusion for consequential losses.

  9. Sweazey v. Merchants Mut. Ins. Co.

    78 N.Y.2d 1072 (N.Y. 1991)

    Decided October 10, 1991 Appeal from (3d Dept: 169 A.D.2d 43) FINALITY OF JUDGMENTS AND ORDERS

  10. Wickline v. N.Y. Cent. Mut. Fire Ins. Co.

    163 A.D.3d 1238 (N.Y. App. Div. 2018)   Cited 2 times

    "[I]n breach of contract actions[,] the nonbreaching party may recover general damages which are the natural and probable consequences of the breach" ( Bi–Economy Mkt., Inc. v. Harleysville Ins. Co. of N.Y., 10 N.Y.3d 187, 192, 856 N.Y.S.2d 505, 886 N.E.2d 127 [2008] [internal quotation mark and citation omitted] ). These general damages would include the cost to "repair the real property, to replace personal property and [the] loss of use of the insured premises" ( Sweazey v. Merchants Mut. Ins. Co., 169 A.D.2d 43, 45, 571 N.Y.S.2d 131 [1991], lv dismissed 78 N.Y.2d 1072, 576 N.Y.S.2d 221, 582 N.E.2d 604 [1991] ). "Special, or consequential damages, which do not so directly flow from the breach, are also recoverable in limited circumstances" ( Bi–Economy Mkt., Inc. v. Harleysville Ins. Co. of N.Y., 10 N.Y.3d at 192, 856 N.Y.S.2d 505, 886 N.E.2d 127 [internal quotation marks and citation omitted] ). In the context of a contract for insurance, such damages may be available if they were "within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting" ( Panasia Estates, Inc. v. Hudson Ins. Co., 10 N.Y.3d 200, 203, 856 N.Y.S.2d 513, 886 N.E.2d 135 [2008] [internal quotation marks and citations omitted] ).