Opinion
18744/07.
Decided March 14, 2008.
Pro Se Plaintiff Norman B. Arnoff, Esq, Garden City, NY, Attorney for Plaintiffs.
Carney McKay, Esqs., Robert McKay, Esq. Garden City, NY, Attorney for Defendant.
Steinberg Cavaliere, LLP, Neil W. Silberblatt, Esq., White Plains, NY.
This motion by defendant Liberty Insurance Underwriters Inc. ("Liberty Insurance") for an order pursuant to CPLR §§ 3024(b) and 3211(a)(7) striking paragraph 24 from the Verified Complaint; striking and dismissing the third cause of action and plaintiff's demand for punitive damages from the Verified Complaint; and, an award of attorney's fees, is determined as provided herein.
This cross-motion by plaintiffs Burkhart, Wexler Hirschberg, LLP, Stephen B. Wexler, Errol A. Burkhart, David Hirschberg and Norman B. Arnoff ("the attorneys") for an order pursuant to CPLR § 3025 granting them leave to amend their complaint to add causes of action for breach of the covenant of good faith and fair dealing, bad faith and fraudulent marketing practices, and a violation of General Business Law § 349; and, an order pursuant to CPLR § 3212 granting them partial summary judgment declaring that defendants have a contractual duty to defend them in the action Financial Advisors Legal Association Inc. v. Wexler Burkhart, P.C., et al. , (07 Civ. 2248 EDNY) is determined as provided herein.
The plaintiffs in this action, Burkhart, Wexler Hirschberg, LLP, Stephen B. Wexler, Errol A. Burkhart, David Hirschberg and Norman B. Arnoff ("the attorneys") are defendants in the Federal Court action Financial Advisors Legal Association Inc. v. Wexler Burkhart, P.C., et al. , (07 Civ. 2248 EDNY). That action was brought against them by one of their former clients, Financial Advisors Legal Association Inc. ("Financial Advisors"). It was commenced on or about June 4, 2007 and on or about June 8, 2007, the attorneys notified Liberty Insurance about that suit and requested a defense and indemnification. By letter dated July 3, 2007, Liberty Insurance denied the attorneys a defense in that action. This action in which the attorneys seek, inter alia, a defense and indemnification in the Federal Court action ensued.
As for the attorneys' motion pursuant to CPLR § 3025, leave to amend their complaint is not necessary as the defendants' time to answer has not expired. CPLR §§ 3211(f), 3025(a) . Plaintiff's "proposed" Amended Complaint is accordingly substituted for the original complaint. As is its right, Liberty Insurance has elected to pursue its CPLR §§ 3024, 3211 application vis a vis the Amended Complaint. ( Terrano v. Fine , 17 AD3d 449 , 793 NYS2d 451 (2nd Dept., 2005) citing Livadiotakis v. Tzitzkalakis , 302 AD2d 369, 370, 753 NYS2d 898 [2nd Dept., 2003]).
As for the attorneys' summary judgment motion, they are correct: Liberty Insurance's duty to defend presents a pure question of law, which can be determined from the subject insurance policy and the complaint in the Federal Court action. The attorneys may not seek summary judgment pursuant to CPLR § 3212 as issue has not been joined. While a court may treat a motion pursuant to CPLR § 3211 as a summary judgment motion ( CPLR § 3211[c] ), the attorneys' motion is not a motion pursuant to CPLR § 3211. The attorneys' application may not be treated as one for a preliminary injunction because they have not established a likelihood of success on the merits, that irreparable injury will result absent injunctive relief or that a balancing of the equities tips decidedly in their favor. ( Aetna Ins. Co. v. Capasso , 75 NY2d 860, 552 NE2d 166, 552 NYS2d 918 (1990); W.T. Grant Co. v. Srogi , 52 NY2d 496, 420 NE2d 953, 438 NYS2d 761).
Nevertheless, in response to the attorneys' cross-motion seeking, inter alia, declarative relief, Liberty Insurance has sought a declaratory judgment declaring that its denial of a defense to the attorneys in the Federal Court action was proper and that it is not contractually obligated to defend or indemnify them. Accordingly, both the plaintiff attorneys and the defendant Liberty Insurance have indicated that the issue presented is purely a legal one and it is unequivocally clear that they have both laid bare their proof and "submitt[ed] facts and arguments which clearly indicate that they have deliberately chart[ed] a summary judgment course'" with respect to Liberty Insurance's duty to the attorneys in the Federal Court action. ( Mihlovan v. Grozavu , 72 NY2d 506, 531 NE2d 288, 534 NYS2d 656 (1988), quoting Four Seasons Hotels v. Vinnik , 127 AD2d 310, 320, 515 NYS2d 1 (1st Dept., 1987); see also, Backer v. Bouza Falco Co. , 28 AD3d 503 , 814 NYS2d 188, lv. app. 854 NE2d 1276, 821 NYS2d 812 (2nd Dept., 2006), lv den. 7 NY3d 707 (2006); Myers v. BMR Bldg. Inspections, Inc. , 29 AD3d 546 , 814 NYS2d 686 (2nd Dept., 2006); Jamison v Jamison , 18 AD3d 710 , 796 NYS2d 625 [2nd Dept., 2005]).
While Liberty Insurance did issue the attorneys their professional liability insurance policies, it has refused to defend and/or indemnify them in the Federal Court action on numerous grounds. Liberty Insurance has not denied the attorneys coverage based on an exemption but rather as simply not falling within the activities covered by their policy. Liberty Insurance denied coverage on the ground that in its complaint, Financial Advisors did not allege that the attorneys' wrongful conduct arose out of the rendering or failure to render professional legal services for others, as was required by the policy. Liberty Insurance also denied the attorneys coverage on the ground that they may have had a reasonable basis to either believe that they had breached a professional duty or to foresee that a claim may be advanced before their first policy was issued. Liberty Insurance also denied the attorneys coverage because in its complaint, Financial Advisors had alleged that the attorneys' conduct was dishonest, fraudulent, criminal, malicious and/or deliberately wrongful, which is not covered by the policy and because Financial Advisors had alleged that the attorneys had provided legal services and acted as a principal in RRADA, an entity in which the attorneys apparently held various individual and collective equity interests, which also was not covered by the attorneys' policy. Lastly, Liberty Insurance denied the attorneys coverage for failure to provide timely notice.
In the first cause of action of the Amended Complaint in this action the attorneys allege that they have incurred and continue to incur legal costs defending the federal action and that Liberty Insurance acted in bad faith and breached their insurance agreement by refusing to defend them. Declaratory relief is sought. In the second cause of action of the Amended Complaint in this action the attorneys seek the costs and expenses incurred so far in defending the federal court action, as well as future costs and expenses to be borne by them. In the third cause of action of their Amended Complaint in this action the attorneys allege that although Liberty Insurance led it to believe that it was procuring "litigation insurance," Liberty Insurance never had any intention of providing it. The attorneys further allege that Liberty Insurance engaged in fraudulent marketing and claims practices, thereby giving rise to their liability for the costs and attorneys' fees incurred in bringing this action, as well as punitive damages. In the fourth cause of action of their Amended Complaint in this action a violation of Section 349 of the General Business Law is alleged. The attorneys allege that it is Liberty Insurance's custom and practice to deny any and all claims that are arguably beyond the terms of the professional liability insurance policy regardless of the existence of claims, which are clearly within the terms of the policy; that Liberty Insurance at no time disclosed those customs and practices to them; and, that Liberty Insurance in fact made representations to them to the contrary. The attorneys allege that Liberty Insurance's deceptive acts and practices have injured them and caused them to incur legal fees in the Federal Court action and substantial fees and costs in bringing this action to secure insurance coverage, as well.
Summary Judgment: Liberty Insurance's Duty to Defend
The attorneys bear the burden of establishing the existence of coverage in the first instance: until that burden is met, Liberty Insurance does not bear the burden of establishing an exclusion. ( Consolidated Edison Co. of New York, Inc. v. Allstate Ins. Co. , 98 NY2d 208, 218, 774 NE2d 687, 746 NYS2d 622 (2002); American Mfrs. Mut. Ins. Co. v. Qualifying Distributors, Inc. , 16 AD3d 607 , 792 NYS2d 555 [1st Dept., 2005]). The duty to defend is broader than the duty to indemnify. ( Fitzpatrick v. American Honda Motor Co., Inc. , 78 NY2d 61, 65, 575 NE2d 90, 571 NYS2d 672 (1991), citing Ruder Finn v. Seaboard Sur. Co. , 52 NY2d 663, 669-670, 422 NE2d 518, 439 NYS2d 858 (1981), lv to rearg den. 54 NY2d 753). It is the facts pleaded, which determine whether a claim is potentially covered so as to trigger a duty to defend. ( See, Allstate Ins. Co. v. Mugavero , 79 NY2d 153, 154, 589 NE2d 365, 58 NYS2d 142). "If the [Federal Court action] complaint contains any facts or allegations which bring the claim even potentially within the protection purchased, the insurer is obligated to defend." ( Technicon Electronics Corp. v. American Home Assur. Co. , 74 NY2d 66, 73, 542 NE2d 1048, 544 NYS2d 531 (1989) citing Ruder Finn v. Seaboard Sur. Co., supra ). "The duty of an insurer to defend its insured arises whenever the allegations within the four corners of the underlying complaint potentially give rise to a covered claim, or where the insurer has actual knowledge of facts establishing a reasonable possibility of coverage.'" ( Frontier Insulation Contrs., Inc. v. Merchants Mut. Ins. Co. , 91 NY2d 169, 175, 690 NE2d 866, 667 NYS2d 982 (1997), quoting Fitzpatrick v. American Honda Motor Co., supra ; "If any of the claims against an insured arguably arise from covered events, the insurer is required to defend the entire action." ( Frontier Insulation Contractors, Inc. v. Merchants Mut. Ins. Co., supra , at p. 175 citing Seaboard Sur. Co. v. Gilette Co. , 64 NY2d 304, 476 NE2d 272, 486 NYS2d 873).
In contrast, "where the facts alleged plainly do not bring the case within the coverage of the policy, there is no obligation to defend. . . ." ( George Mulhstock Co. v. American Home Assurance Co. , 117 AD2d 117, 503 NYS2d 174 (1st Dept., 1986), citing Lionel Freedman, Inc. v. Glens Falls Ins. Co. , 27 NY2d 364, 267 NE2d 93, 318 NYS2d 303 (1971), rearg den. 28 NY2d 859). While the duty to defend is broader than the duty to indemnify, "it is equally well settled that the obligation of an insurer to defend does not extend to claims which are not covered by the policy or which are expressly excluded from coverage." ( 30 West 15th St. Owners Corp. v. Travelers Ins. Co. , 165 AD2d 731, 733, 563 NYS2d 784 [1st Dept., 1990]). "[A]n insurer can be relieved of its duty to defend if it establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision." ( Allstate Ins. Co. v. Zuk , 78 NY2d 41, 45, 574 NE2d 1035, 571 NYS2d 429 (1991); see also, Atlantic Mut. Ins. Co. v Terk Technologies Corp ., 309 AD2d 22, 29, 763 NYS2d 56 [1st Dept., 2003]). A duty to defend must not be imposed " through a strained, implausible reading of the complaint that is linguistically conceivable but tortured and unreasonable. . . .'" ( Atlantic Mut. Ins. Co. v. Terk Technologies Corp., supra , at p. 29 quoting Northville Indus. Corp. v. National Union Fire Ins. Co. of Pittsburgh , 89 NY2d 621, 679 NE2d 1044, 657 NYS2d 564). "[A]n insured may not "by use of a shotgun" allegation, create a duty to defend beyond that which was anticipated by the parties when they entered into the policy contract.'" ( Atlantic Mut. Ins. Co. v. Terk Technologies Corp., supra , at p. 31, quoting Village of Newark v. Pepco Contrs. , 99 AD2d 661, 662, 472 NYS2d 66, aff'd 465 NE2d 1261, 477 NYS2d 325 {62 NY2d 767} (4d Dept., 1984), aff'd. 62 NY2d 772).
"[A]n errors and omissions policy is intended to insure a member of a designated calling against liability arising out of mistakes inherent in the practice of that particular profession or business," and is not so comprehensive "to protect against all business vicissitudes." ( Albert J. Schiff Assocs. Inc. v. Flack , 51 NY2d 692, 700, 417 NE2d 84, 435 NYS2d 972). "To hold otherwise, on a fair reading of the policies, would be to create coverage beyond that which was bought and paid for." ( Albert J. Schiff Assocs. v. Flack, supra , at p. 700; see also, Tartaglia v. Home Ins. Co. , 240 AD2d 396, 658 NYS2d 388 (2nd Dept., 1997); George Muhlstock Co. v. American Home Assurance Co., supra ; Societe Generale v Certain Underwriters at Lloyd's London , 1 AD3d 164 , 767 NYS2d 416 [1st Dept., 2003]).
A careful reading of the policy and the Federal Court complaint is required to determine whether the attorneys are entitled to a defense and indemnification in the Federal Court action.
Liberty Insurance agreed in the attorneys' insurance policy to pay damages that the attorneys are legally obligated to pay for claims that are made against them during the policy period, which are reported to Liberty Insurance in writing and are "caused by a wrongful act which takes place before or during the policy period." "Wrongful acts" are defined by the policy as "any actual or alleged act, error, omission or personal injury which arises out of the rendering or failure to render professional legal services." "Professional legal services" is defined as "legal services and activities performed for others as a lawyer.'"
In the Federal Court action, Financial Advisers has advanced claims against the attorneys for breach of fiduciary duty, tortious interference with contractual relations and misappropriation of trade secrets. More specifically, in the Federal Court complaint Financial Advisors has alleged that the attorneys disclosed and used its confidential information to assist another one of their clients, which was a competitor of Financial Advisors, Registered Representative Arbitration Defense Association ("RRADA"). Financial Advisors has alleged that the attorneys breached their fiduciary duties by pursuing interests that were in direct competition with it, which directly and proximately caused membership and revenues to decline. In its complaint, Financial Advisors has stated that that action arises "out of the misappropriation by [the] attorneys of a client's business opportunity for the benefit of the attorneys and another client." Financial Advisors has alleged that it provided the attorneys with confidential and proprietary information about its corporation, including but not limited to its business model, membership structure, pricing formulas for membership fees, marketing strategies, names of its members and prospective members, company financing and business research and that beginning in approximately early 2005, the attorneys embarked on a scheme to copy Financial Advisors' business model and to convert Financial Advisors' members and prospective members to a newly formed competing business entity, defendant RRADA. Financial Advisors alleges that the attorneys represented them until April 9, 2007 on which date it terminated their arrangement.
More specifically, Financial Advisors has alleged that in March 2005, approximately two years after the attorneys had begun representing it, RRADA was formed and that RRADA posted its website in approximately December 2005. Financial Advisors has alleged that it became aware of RRADA's existence and RRADA's use of its confidential business and financial information to market itself and lure away Financial Advisors' members in June 2006. Financial Advisors has alleged that RRADA had "substantial connections" with the attorneys, in fact, it alleges that RRADA has the same address as the attorneys; RRADA's phone number rings at the attorneys' office; and, information and membership benefits listed on RRADA's website are virtually identical to information and benefits researched, developed and offered by it information and benefits with which the attorneys were intimately familiar from their affiliation with Financial Advisors. Financial Advisors has alleged that RRADA's marketing package contains promotional statements identical to its own. Further, Financial Advisors has alleged that RRADA published on its website an article entitled "The Bedrock Principle for Investment Advisors," which the attorneys Wexler and Arnoff had previously submitted to it. In addition, Financial Advisors notes that there is "a significant difference between RRADA and Financial Advisors," to wit, while the attorneys on behalf of RRADA required referral attorneys to sign a non-competition agreement, the attorneys on behalf of Financial Advisors did not require referral attorneys or its corporate and coverage counsel to sign such a non-competition agreement. Financial Advisors has alleged that the attorneys and RRADA have made misrepresentations to its members and prospective members in an attempt to persuade them to terminate relationships with it and to join RRADA and that while the attorneys previously represented to Financial Advisors that they would refer members to it, they never did.
Financial Advisors has further alleged that based on its suspicions, it asked an associate to call attorney Wexler to inquire about its services, but Wexler instead directed her to RRADA's website and suggested she look into joining RRADA. Financial Advisors has also alleged that it asked another associate to call RRADA's office and when that associate did so, she was also directed to attorney Wexler who was identified as one of RRADA's attorneys. Financial Advisors has alleged that it discovered photos of attorney Wexler and the co-defendant Bennett in front of RRADA's promotional booth at a financial services conference and that attorney Wexler was listed as a representative of RRADA. In addition, Financial Advisors has alleged that it subsequently discovered that the attorneys and their co-defendant Bennett attended numerous financial services conferences jointly representing and promoting RRADA memberships.
In its first claim sounding in breach of fiduciary duty, Financial Advisors has alleged that the attorneys owed it duties of loyalty, good faith, trust, candor, fair dealing and due care "which required them to refrain from engaging in conflict of interest . . . [and] from assisting a third party in competing with [it] and from disclosing any confidences obtained from [it]." Financial Advisors has further alleged that the attorneys had a duty to avoid acting in a manner detrimental to its business and that the attorneys breached those duties "by pursuing interests in competition with Financial Advisors and by assisting RRADA by providing them confidential proprietary and/or secret information."
In its second cause of action sounding in aiding and abetting a breach of a fiduciary duty, Financial Advisors has alleged that RRADA and Bennett knowingly aided and abetted the attorneys' breach of their fiduciary duties.
In their third cause of action sounding in tortious interference with contractual relations, Financial Advisors has alleged that the attorneys, RRADA and Bennett procured at least one of its member's breach of its agreement with Financial Associates. Financial Advisors in fact repeatedly alleges that the attorneys acted "wantonly, willfully and maliciously" with intent to injure Financial Advisors.
In their fourth cause of action sounding in misappropriation of trade secrets, Financial Advisors has alleged that the attorneys knew of and disseminated trade secrets to RRADA and Bennett. Consequential and punitive damages are sought.
Financial Advisors' complaint in the Federal Court action presents a claim for willful self-dealing and misappropriation of its business secrets and customers to benefit the attorneys themselves and their allegedly closely affiliated client, RRADA. All of the factual allegations including the allegation in ¶ 53 about failing to inform Financial Advisors concerning non-competition agreements for its referral attorneys and "corporate and coverage counsel" are part and parcel of the improper self-dealing claims. A claim for professional malpractice has not been advanced.
In attempting to establish that Financial Advisors' claims are covered by the policy, the attorneys point to Financial Advisor's allegation that the attorneys "never advised [it] to require its referral attorneys or its corporate and coverage counsel to sign a non-competition agreement (¶ 53)." However, that allegation was made to highlight the "significant difference" between the attorneys' handling of Financial Advisors and RRADA. Financial Advisors alleges in ¶ 52 that the attorneys required non-competition agreements for RRADA the entity closely affiliated with the attorneys. These allegations plainly refer to the advice that the attorneys did not provide Financial Advisors which permitted the attorneys to misappropriate Financial Advisors' business model. The attorneys' alleged lack of advice regarding a non-competition agreement does not form the basis of an independent claim of legal malpractice against the attorneys. Rather, this allegation is part of the attorneys' alleged overall course of wanton, willful and malicious misconduct directed against Financial Advisors.
As for Financial Advisors' conclusory reference to the attorneys' breach of their fiduciary duty of "due care," it is just that, conclusory. There are no facts bearing on the coverage issue here. In ¶ 73 of its complaint, Financial Advisors alleges that the attorneys breached all of their fiduciary duties "by pursuing interests in competition with FA Legal. . . ." Self dealing is what is alleged, not professional negligence in the mishandling of a client matter "for" Financial Advisors. While the attorneys conveniently characterize such allegations as a failure to exercise "due care" in disclosing a client's confidences, the attorneys continually ignore the fact that Financial Advisors' entire complaint is grounded in the allegation that the attorneys (and their closely affiliated co-defendants) willfully, wantonly and maliciously took advantage of that disclosure. A self-dealing complaint against a lawyer based on the lawyer's alleged scheme to assist a business affiliated with the law firm in setting up a competing business against the client in order to further the lawyer's own business interests hardly constitutes "professional" negligence. ( Ulico Casualty v. Wilson, Elser, Moskowitz , 16 Misc 3d 1051 , 843 NYS2d 749 [Sup. Ct. NY Co., 2007]). Rather, such a breach of fiduciary duty claim is based on a conflict of interest that does not involve professional negligence and does not state a claim sounding in legal malpractice.
Under New York law, even if there is an isolated allegation of arguably covered conduct, which the attorneys allege there is here, it is insufficient to trigger a duty to defend when the plain "gravamen" of the complaint refers to uncovered conduct. ( See, e.g., Seskin Sassone, P.C. v. Liberty Intern. Underwriters , 306 AD2d 520, 521, 306 AD2d 520, 761 NYS2d 679 (2nd Dept., 2003); Sweet Home Cent. School Dist. of Amherst and Tonawanda v Aetna Commercial Ins. Co. , 263 AD2d 949, 695 NYS2d 445 (4th Dept., 1999); Green Chimneys School for Little Folk v. National Union Fire Ins. Co. of Pittsburgh, Pennsylvania , 244 AD2d 387, 664 NYS2d 320 (2nd Dept., 1997); Board of Ed. of East Syracuse-Minoa Cent. School District v. Continental Ins. Co. , 198 AD2d 816, 817, 604 NYS2d 399 [4th Dept., 1993]).
The defendant Liberty Insurance's motion is granted and the attorneys' cross-motion is denied to the extent that it is hereby declared that Liberty Insurance's denial of a defense to the attorneys in Financial Advisors Legal Association Inc. v. Wexler Burkhart, P.C., et al. , (07 Civ. 2248 EDNY) was proper and Liberty Insurance does not have a duty to defend or indemnify the attorneys in that action. The first and second cause of action are accordingly dismissed pursuant to CPLR § 3212. ( Albert J. Schiff Assocs., Inc. v. Flack, supra; Tartaglia v. Home Ins. Co., supra; George Muhlstock Co. v. American Home Assurance Co., supra; Societe Generale v. Certain Underwriters at Lloyd's London, supra; Ulico Casualty Co. v. Wilson, Elser, Moskowitz, supra ).
Liberty Insurance's motion to strike ¶ 24 of the complaint in which Financial Advisors alleges that Liberty Insurance's denial of coverage was in bad faith is denied as moot. It has already been determined that Liberty Insurance's denial of coverage was proper.
Liberty Insurance also moves to dismiss the attorneys' third and fourth causes of action.
"On a motion to dismiss pursuant to CPLR § 3211(a)(7), the court must determine whether, accepting as true the factual averments of the [pleading] and according the non-moving party] the benefits of all favorable inferences which may be drawn therefrom, the [proponent of the pleading] can succeed upon any reasonable view of the facts stated (citation omitted)." ( City Line Rent A Car, Inc. v. Alfess Realty, LLC , 33 AD3d 835 , 823 NYS2d 214 [2nd Dept., 2006]). "The court must determine whether the alleged facts fit any cognizable legal theory. The standard is not whether the complaint states a cause of action, but whether the plaintiff has a cause of action (citations omitted)" ( Morales v. Copy Right, Inc. , 28 AD3d 440 , 440-441, 813 NYS2d 731, lv. den. 853 NE2d 244, 819 NYS2d 873 (2nd Dept., 2006), lv den. 7 NY3d 705).
In their third cause of action, the attorneys now allege that Liberty Insurance held out to them that it was offering and providing them with "litigation insurance," when in fact it had no intention to provide such insurance and its claims practices would deprive the attorneys of the full benefits of the policy; and, that Liberty Insurance knowingly and willfully and in bad faith engaged in fraudulent marketing and claims practices. In their fourth cause of action the attorneys now allege that Financial Advisors violated General Business Law § 349, which warrants the imposition of liability for the costs and legal fees borne by the attorneys in maintaining this action.
The third cause of action is dismissed pursuant to CPLR § 3211(a)(7). " There is no separate cause of action in tort for an insurer's bad faith failure to perform its obligations' under an insurance contract." ( Zawahir v. Berkshire Life Ins. Co. , 22 AD3d 841 , 804 NYS2d 405 (2nd Dept., 2005), citing Continental Cas. Co. v. Nationwide Indemn. Co. , 16 AD3d 353, 354-355,792 NYS2d 434 [1st Dept., 2005]). That claim is duplicative of the breach of contract claim. ( Grazioli v. Encompass Ins. Co. , 40 AD3d 696 , 835 NYS2d 682 [2nd Dept., 2007]).
The fourth cause of action is also dismissed pursuant to CPLR § 3211(a)(7). "This action simply involves a private contract dispute involving coverage under the subject policies, in contrast to the consumer-oriented deceptive conduct aimed at the public at large that General Business Law § 349 is designed to address."( Zawahir v. Berkshire Life Ins. Co., supra , at p. 842, citing New York Univ. v. Continental Ins. Co. , 87 NY2d 308, 320-321, 662 NE2d 763, 639 NYS2d 283). The cause of action does not sufficiently allege conduct having an impact on consumers at large. ( Kantrowitz v. Allstate Ins. Co. , ___ NYS2d ___, 2008 WL 525970 (N.Y.AD2nd Dept.); Berardino v Ochlan , 2 AD3d 556 , 770 NYS2d 75 (2nd Dept., 2003), citing New York Univ. v. Continental Ins. Co., supra ).
The complaint is dismissed in its entirety. Settle judgment on notice.
The foregoing constitutes the Order of this Court.