Second, the fact that an alleged deceptive practice arises out of contractual relationships probably does not, by itself, take the practice out of the ambit of the statute. However, the statute does not appear to have been intended to turn a simple breach of contract into a tort, and several decisions of the New York state appellate courts have held as much. See, e.g., Hassett v. N.Y. Cent. Mut. Fire Ins. Co., 753 N.Y.S.2d 788, 789 (N.Y.App.Div. 2003); Graham v. Eagle Distrib. Co., 637 N.Y.S.2d 583, 584 (N.Y.App.Div. 1996); Teller v. Bill Hayes, Ltd., 630 N.Y.S.2d 769, 774 (N.Y.App.Div. 1995). Third, the parties disagree about whether the statute is subject to general or heightened specificity pleading requirements but agree that the complaint here does not specify the particular action that was deceptive.
Here, plaintiff's cause of action for unjust enrichment is directly related to defendants' alleged failure to fulfill their obligations under the oral contract. Thus, plaintiff's cause of action for unjust enrichment may not be considered an independent tort for purposes of a punitive damages claim (see generally C-Kitchen Assoc., Inc. v Travelers Ins. Co., 11 A.D.3d 961, 961 [4th Dept 2004]; Hassett v New York Central Mut. Fire Ins. Co., 302 A.D.2d 886, 887 [4th Dept 2003]; Paull v First UNUM Life Ins. Co., 295 A.D.2d 982, 984-985 [4th Dept 2002]). Further, inasmuch as plaintiff failed "to allege conduct that was directed to the general public or that evinced the requisite high degree of moral turpitude or wanton dishonesty" (Englert v Schaffer, 61 A.D.3d 1362, 1363 [4th Dept 2009] [internal quotation marks omitted]; see generally New York Univ. v Continental Ins. Co., 87 N.Y.2d 308, 316 [1995]), that part of the motion seeking dismissal of the punitive damages claim should have been granted.
We therefore modify the order in each appeal accordingly. We conclude that the first and second causes of action are duplicative inasmuch as they both allege that defendant breached the contract in question by interfering with subcontractors and refusing to grant appropriate extensions, thus preventing plaintiff from completing the contract in a timely manner ( see New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 319–320, 639 N.Y.S.2d 283, 662 N.E.2d 763; Hassett v. New York Cent. Mut. Fire Ins. Co., 302 A.D.2d 886, 753 N.Y.S.2d 788; see generally Bass v. Sevits, 78 A.D.2d 926, 927, 433 N.Y.S.2d 245). We note that the allegations underlying the first cause of action occurred prior to a written amendment to the contract whereby defendant granted plaintiff an extension.
The first and second counterclaims both allege that State Farm breached its insurance contract by wrongfully denying coverage. Since the second counterclaim is duplicative of the first counterclaim, it should have been dismissed ( see New York Univ. v. Continental Ins. Co., 87 NY2d 308, 315-320; Hassett v. New York Cent. Mut. Fire Ins. Co., 302 AD2d 886, 887; Paull v. First UNUM Life Ins. Co., 295 AD2d 982, 984). In addition, the defendant's counterclaims are insufficient to warrant punitive damages and damages for emotional distress ( see Rocanova v. Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613; Hess v. Nationwide Mut. Ins. Co., 273 AD2d 689, 690-691; Bread Chalet v. Royal Ins. Co., 224 AD2d 650, 651; Warhoftig v. Allstate Ins. Co., 199 AD2d 258, 259; Kanapaska v. Prudential Prop. Cas. Ins. Co., 122 AD2d 935; Korona v. State Wide Ins. Co., 122 AD2d 120, 121; Fleming v. Allstate Ins. Co., 106 AD2d 426, affd 66 NY2d 838, cert denied 475 US 1096).
Therefore, the fourth cause of action alleging violations of Insurance Law § 2601 is dismissed. Regarding the sixth cause of action for breach of fiduciary duty based on defendant's alleged self-serving unilateral interpretation of the subject policy, said cause of action is essentially duplicative of the breach of contract cause of action ( see, New York Univ. v ContinentalIns. Co., supra; Hassett v New York Cent. Mut. Fire Ins. Co., 302 AD2d 886,753 NYS2d 788 [4th Dept 2003]). Thus, the sixth cause of action must be dismissed.
Rather, Sutton's claims concern a private commercial dispute involving the two businesses involved in the transaction negating the applicability of General Business Law § 349. See, e.g., Hassett v. New York Central Mut. Fire Ins. Co., 753 N.Y.S.2d 788, 789 (4th Dept. 2003); Security Mut. Life Ins. Co. of New York v. Dipasquale, 283 A.D.2d 182 (1st Dept. 2001); Canario v. Gunn, supra; Drepaul v. Allstate Ins. Co., supra; Sheth v. New York Life Ins. Co., 272 A.D.2d 72,73-74 (1st Dept. 2000). Thus, Plaintiff's course of action based upon General Business Law § 349 must be dismissed.
Rather, Sutton's claims concern a private commercial dispute involving the two businesses involved in the transaction negating the applicability of General Business Law § 349. (See, e.g., Hassett v New York Cent. Mut. Fire Ins. Co., 302 AD2d 886 [4th Dept 2003]; Security Mut. Life Ins. Co. of N.Y. v DiPasquale, 283 AD2d 182 [1st Dept 2001]; Canario v Gunn, supra; Drepaul v Allstate Ins. Co., supra; Sheth v New York Life Ins. Co., 273 AD2d 72, 73-74 [1st Dept 2000].) Thus, plaintiff's cause of action based upon General Business Law § 349 must be dismissed.