City of N.Y. v. Smokes-Spirits.com, Inc., 541 F.3d 425, 455 (2d Cir. 2008). The deceptive acts must be harmful to the public at large, Holmes Prot. of N.Y., Inc. v. Provident Loan Soc. of N.Y., 179 A.D.2d 400 (1st Dep't 1992), and oriented to consumers, not businesses. United Teamster Fund v. MagnaCare Admin. Servs., LLC, 39 F. Supp. 3d 461, 475 (S.D.N.Y. 2014). While BEB mentions consumers, Health Matters' alleged conduct was clearly business oriented, not consumer oriented.
To state a claim for breach of the implied covenant of good faith and fair dealing the claim must allege that the defendant sought to prevent the plaintiffs' performance of the contract or to withhold its benefits from the plaintiffs. Holmes Protection of New York v. Provident Loan Society of New York, 179 A.D.2d 400, 577 N.Y.S.2d 850, 851 (1st Dept. 1992). The Court has previously determined that Plaintiff's breach of contract and fraud claims cannot survive summary judgment.
See also New England Leather Co. v. Feuer Leather Corp., 942 F.2d 253, 257 (4th Cir. 1991) (applying New York statutory law). In this case, the defendant insurers' refusal to defend or to indemnify Asbeka in pending lawsuits is nothing more than a private contractual dispute — and not a recurring deceptive business practice that is harmful to the public at large — and is, therefore, beyond the ambit of section 349. Holmes Protection of New York, Inc. v. Provident Loan Soc. of New York, 179 A.D.2d 400, 400, 577 N.Y.S.2d 850, 850 (1st Dep't 1992); Rubin v. Telemet America, Inc., 698 F. Supp. 447, 451 (S.D.N.Y. 1988); Azby Brokerage, Inc. v. Allstate Ins. Co., 681 F. Supp. 1084, 1089 (S.D.N.Y. 1988). Based on the evidence of record, this Court is driven to conclude that the insurers were not acting in bad faith or in an outrageous manner in requesting that Asbeka provide them with additional information regarding the respective insurance policies issued by them and concerning the pending lawsuits.
It obligates the promisor only to allow the promisee to reap the benefits of the promised performance; it does not obligate the promisor to make future promises. See Holmes Protection of New York, Inc. v. Provident Loan Society of New York, ___ A.D. ___, 577 N.Y.S.2d 850, 851 (1st Dept. 1992) (The proposed "counterclaims for breach of the implied covenant of good faith and fair dealing are insufficient since they do not allege that plaintiff sought to prevent defendant's performance of the contracts or to withhold its benefits from defendant.") Moreover, so long as the promisee is allowed to reap the benefits of the contract, the implied covenant of good faith does not require the promisor to take actions contrary to his own economic interest such as extending, or even negotiating the possible extension of, a risky loan. See Van Valkenburgh, N. N., Inc. v. Hayden Publishing Co., 30 N.Y.2d 34, 45, 330 N.Y.S.2d 329, 281 N.E.2d 142, cert. denied, 409 U.S. 875, 93 S.Ct. 125, 34 L.Ed.2d 128 (1972).
obligates the promisor only to allow the promisee to reap the benefits of the promised performance; it does not obligate the promisor to make future promises. SeeHolmes Protection of New York, Inc. v. Provident Loan Society of New York, ___ A.D. ___, 577 N.Y.S.2d 850, 851 (1st Dept. 1992) (The proposed "counterclaims for breach of the implied covenant of good and fair dealing are insufficient since they do not allege that plaintiff sought to prevent defendant's performance of the contracts or to withhold its benefits from defendant.") Moreover, so long as the promisee is allowed to reap the benefits of the contract, the implied covenant of good faith does not require the promisor to take actions contrary to his own economic interest such as extending, or even negotiating the possible extension of, a risky loan.
Within every contract is an implied covenant of good faith and fair dealing (see, Rowe v. Great Atlantic Pacific Tea Co., 46 N.Y.2d 62). This covenant is breached when a party to a contract acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under their agreement (see, Jaffe v. Paramount Communications, 222 A.D.2d 17, 22-23). For a complaint to state a cause of action alleging breach of an implied covenant of good faith and fair dealing, the plaintiff must allege facts which tend to show that the defendant sought to prevent performance of the contract or to withhold its benefits from the plaintiff (see,Dvoskin v. Prinz, 205 A.D.2d 661, 662; Holmes Protection of N.Y. v. Provident Loan Soc. of N.Y., 179 A.D.2d 400). At bar, even the most liberal reading of the amended complaint, together with the affidavit of the plaintiff's president, shows that they fail to sufficiently state a cause of action alleging breach of an implied covenant of good faith and fair dealing (see, Cohn v. Lionel Corp., 21 N.Y.2d 559; Kain v. Larkin, 141 N.Y. 144; Components Direct v. European Am. Bank Trust Co., 175 A.D.2d 227). The plaintiff also fails to state a cause of action for reformation of the contract based on mutual mistake.
Prior to the Court of Appeals decision in Oswego Laborers', the courts had imposed a requirement that the plaintiff prove that the conduct of the defendant was a recurring act (see, Myers, Smith Granady v. New York Prop. Ins. UnderwritingAssn., 201 A.D.2d 312, 313, affd on other grounds 85 N.Y.2d 832; Holmes Protection v. Provident Loan Socy., 179 A.D.2d 400; 99 Realty Co. v. Wall St. Transcript Corp., 160 Misc.2d 850). However, as the Oswego Laborers' Court explained, this is not a requirement of the statute.
Such allegations do not show materially deceptive conduct on which plaintiff relied to his detriment (Ortho Pharm. Corp. v Cosprophar, Inc., 32 F.3d 690, 697 [2d Cir]). It had to be evident to plaintiff that the higher rate had something to do with the fact that because he had discarded the reservation number defendant had given him when he reserved a car the day before, defendant was unable to verify the reservation; defendant's agents had no reason to quote the advance reservation rate when plaintiff expressed an interest in a presently available car; and, in point of fact, the reservation would have guaranteed the rate as well as the car if plaintiff had kept his reservation number. In any event, this aspect of plaintiff's General Business Law § 349 claim is more in the nature of a private commercial dispute not of a recurring nature that the statute was not intended to address (Holmes Protection v Provident Loan Socy., 179 A.D.2d 400). Plaintiff's cause of action under General Business Law § 350 for false advertising is legally insufficient absent an allegation that he relied upon or even knew of defendant's advertising. Finally, plaintiff's cause of action for common-law fraud is legally insufficient absent an allegation that defendant knew that plaintiff could have rearranged his personal schedule in order to receive the lower rate, since, without such knowledge, defendant lacked the scienter necessary to impose upon it a duty to disclose its two-hour advance reservation rate (Frigitemp Corp. v Financial Dynamics Fund, 524 F.2d 275, 283).
These defenses amounted to nothing more than conclusory and unsubstantiated allegations which were insufficient to defeat a motion for summary judgment (see, Bosio v. Selig, 165 A.D.2d 822). The first counterclaim to recover damages for breach of the implied covenant of good faith and fair dealing was insufficient, since the respondents did not allege that the plaintiff sought to prevent the performance of the contracts or to withhold its benefits from the respondents (see, Holmes Protection v Provident Loan Socy., 179 A.D.2d 400). The second counterclaim to recover damages for tortious interference with business relations was also legally insufficient. The record did not establish that the actions of the plaintiff prevented third parties from dealing with the respondents (cf., WFB Telecommunications v. NYNEX Corp., 188 A.D.2d 257). The third counterclaim alleging fraudulent misrepresentation is also without merit. It is clear the plaintiff informed the respondents of a possible labor claim before the execution of the agreement.
General Business Law § 349 is a consumer protection statute which declares unlawful all "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state" (General Business Law § 349 [a]). To constitute a violation of this statute, the deceptive acts or practices must be of a recurring nature and harmful to the public at large (see, Hart v Allstate Ins. Co., 201 A.D.2d 621; Holmes Protection v Provident Loan Socy., 179 A.D.2d 400; see also, Asbeka Indus. v Travelers Indem. Co., 831 F. Supp. 74, 88). Here, even assuming that North Sea's disclaimer could be deemed a "deceptive act," the plaintiffs have wholly failed to demonstrate, or even allege, that the act was of a recurring nature and harmful to the public at large (cf., Hart v Moore, 155 Misc.2d 203). Indeed, the plaintiffs have claimed only that in handling the subject claim, North Sea violated the prohibition against unfair claim settlement practices set forth in Insurance Law § 2601.