Opinion
Index No. 604866/2022
05-01-2023
Daniel Koffler, individually and as Trustee of the Benefit Trust 2017, Plaintiff, v. The Cincinnati Insurance Company, Fort Orange Claim Service, Inc. d/b/a FOCUS Adjusters, Certified Restoration Services, Inc., RLC Building Consulting & Appraisals Corp., The Levine Group, Inc., Precision Scope Building Consulting, LLC, Patrick Young, Robert Corley, Jordan Levine, and Richard Pisco, Defendants.
The Law Firm of Elias C. Schwartz, PLLC Attorneys for Plaintiff Rivkin Radler LLP Attorneys for Defendant The Cincinnati Insurance Company Law Office of Craig A. Blumberg Attorneys for Defendants The Levine Group Inc. Precision Scope Building Consulting, LLC Jordan Levine and Richard Pisco
Unpublished Opinion
The Law Firm of Elias C. Schwartz, PLLC
Attorneys for Plaintiff
Rivkin Radler LLP
Attorneys for Defendant
The Cincinnati Insurance Company
Law Office of Craig A. Blumberg
Attorneys for Defendants
The Levine Group Inc.
Precision Scope Building Consulting, LLC
Jordan Levine and Richard Pisco
Christopher Modelewski, J.
Upon the E-file document list numbered 47 to 69, 73 to 99, 101, 104 to 110 and 115 read and considered on the application of defendant The Cincinnati Insurance Company for, inter alia, an order pursuant to CPLR 7501 confirming an appraisal award, pursuant to CPLR 3211 (a)(1) and (a)(7) dismissing the first, second, third, fourth, fifth and sixth causes of action of plaintiff's complaint, on the application of defendant Richard Pisco for an order dismissing the complaint as against him pursuant to CPLR 3211 (a)(1), (2), (7), and (8), and on the application of defendant Jordan Levine for an order dismissing the complaint as against him pursuant to CPLR 3211 (a)(1), (2), (7), and (8); it is
ORDERED that the respective motions of the parties (sequences 001, 002, and 003) are consolidated for purposes of a determination herein; and it is further
ORDERED that the motion by defendant The Cincinnati Insurance Company for an order pursuant to CPLR 7501 confirming an appraisal award, pursuant to CPLR 3211 (a)(1) and (a)(7) dismissing the first, second, third, fourth, fifth, and sixth causes of action of plaintiff's complaint, and plaintiff's claim for consequential and punitive damages and attorneys' fees, is granted, only to the extent that the second and fifth causes of action asserted against this defendant are dismissed, for the reasons set forth herein; and it is further
ORDERED that the motion by defendant Richard Pisco for an order dismissing the complaint as against him pursuant to CPLR 3211 (a)(1), (2), (7), and (8) is granted pursuant to CPLR 3211 (a)(1) and (7), for the reasons set forth herein; and it is further
ORDERED that the motion by defendant Jordan Levine for an order dismissing the complaint as against him pursuant to CPLR 3211 (a)(1), (2), (7), and (8) is granted pursuant to CPLR 3211 (a)(1) and (7), for the reasons set forth herein.
This is an action by plaintiff Daniel Koffler, individually and as trustee of the Benefit Trust 2017, (collectively referred to herein as "plaintiff") arising from a fire that occurred on February 15, 2021 at the premises located at 290 Barrett Hill Road, Mahopac, New York 10541 (the "subject premises"). The complaint, filed on March 16, 2022, alleges that the fire destroyed 98% of the dwelling located at the subject premises resulting in damages of $962,337.94, as estimated by non-party R.G. Associates. The subject premises were insured by defendant The Cincinnati Insurance Company ("CIC") under a policy with a risk of loss to the dwelling limit of $1,000,000, a limit of $200,000 for other structures, a personal property limit of $500,000, loss of use in the amount of actual loss with a $50,000 deductible, and equipment breakdown coverage of $100,000 with a $500 deductible (the "policy"). The complaint alleges that plaintiff engaged the services of defendant Jordan Levine ("Levine") and his company, defendant The Levine Group Inc. ("TLG") to assist in presenting and negotiating a settlement of the policy claim with CIC in connection with the subject fire. In furtherance thereof, plaintiff and defendant Levine entered into an agreement pursuant to which TLG would receive a commission for its preparation, presentation, adjustment, and negotiation of a settlement of the claim for the damages sustained at the subject premises. The complaint further alleges that defendants Levine and TLG filed a claim with defendant CIC on behalf of plaintiff but that defendant CIC would only pay $408,728.79 based upon the estimate of its appraiser. It is alleged that this partial payout was based upon an estimate that omitted key elements of plaintiff's damage claim and purposefully understated plaintiff's damages. The complaint alleges that defendants Levine and TLG then requested appraisal of the claim against defendant CIC under the policy and retained defendants Richard Pisco ("Pisco") and Precision Scope Building Consulting, LLC ("Precision") for that purpose. Defendant CIC designated defendant Patrick Young ("Young") of defendant Fort Orange Claim Service, Inc. d/b/a FOCUS Adjusters, as its appraiser. The complaint alleges that Pisco and Young could not agree on an appraisal amount and thereafter selected as the umpire, defendant Robert Corley ("Corley"), of defendants Certified Restoration Services, Inc. and RLC Building Consulting & Appraisals Corp. The complaint further alleges that defendants Pisco and Precision submitted to defendants Young and Corley plaintiff's original estimate prepared by R.G. Associates showing damages of $962,337.94. The complaint further alleges that no report prepared by Young was ever presented to Pisco. The complaint further alleges that despite the estimate provided by Pisco, defendant Corley issued an appraisal award of $444,857.58 in replacement cost value (the "award"), which was $517,480.36 less than the amount plaintiff was entitled to under the policy. The complaint alleges eleven (11) causes of action seeking, inter alia, to set aside the appraisal award, a declaration of coverage under the subject policy, and damages for breach of contract, breach of the covenant of good faith and fair dealing, violation of Insurance Law section 2601, bad faith conduct, professional negligence, and violation of section 349 of the General Business Law ("GBL 349").
Defendants CIC, Levine, and Pisco now separately move to dismiss the claims and damages asserted against them. Defendant CIC also moves to confirm the award. Defendant CIC argues that the counts asserted against it, those being the first, second, third, fourth, fifth, and sixth causes of action, cannot stand, as the award is final and binding in the absence of any factual allegations of fraud, duress, or bad faith. Defendant CIC also argues that certain claims are subject to dismissal as being duplicative of other claims and that other counts should be dismissed because no private right of action exists. Defendants Levine and Pisco move to dismiss the claims asserted against them claiming that they did not agree or intend to be personally bound by the agreement entered into between their respective corporate entities and they did not enter into any contracts with plaintiff in their personal capacities. These individual defendants assert that any contracts with plaintiff were signed by them as agents for their corporate entities. Defendants Levine and Pisco further assert that no claim exists against them for professional negligence nor have any such claims been stated against them under GBL 349. Plaintiff opposes the motion by defendant CIC for confirmation of the award asserting there are factual issues precluding the relief sought. Plaintiff further asserts that the award cannot be confirmed due to the alleged misconduct of defendants Young and/or Corley, who intentionally excluded defendant Pisco from most of the appraisal process, did not provide vital information to him, and that defendant Corley, as umpire, engaged in misconduct during the appraisal process. Plaintiff further opposes the motion by defendant CIC to dismiss arguing that misconduct on the part of defendants Young and/or Corley was sufficiently stated on the claim to vacate the award. In particular, it is alleged that defendant Pisco, who was retained by plaintiff, was excluded from receiving material and relevant evidence, was prevented from presenting relevant evidence to defendant Corley, and that defendant Corley engaged in ex parte communications with Young. Plaintiff also urges a denial of the motion by defendant CIC, as there are questions of fact presented which cannot be decided on a motion to dismiss and that require discovery. Plaintiff opposes the motions by defendants Levine and Pisco arguing that claims of professional negligence are asserted against them, which are not based upon any agreements signed by them. Defendant CIC replies arguing, inter alia, that plaintiff failed to submit clear and convincing evidence in admissible form demonstrating that the award was the product of fraud, duress, or bad faith.
Defendants Levine and Pisco each submit reply papers arguing, inter alia, that plaintiff cannot assert a professional negligence claim them arising from their respective contracts, as there is no duty owed to plaintiff independent of the contract. After the submission date, the Second Department issued a decision in Matter of Paluch v. Kohn, 204 A.D.3d 804, 165 N.Y.S.3d 601 (2d Dept 2022), pursuant to which the Court requested and received supplemental submissions from plaintiff and defendant CIC. The Court heard oral argument on March 24, 2023.
According to its submissions, defendant CIC moves pursuant to CPLR 7601 to confirm the award issued by defendant Corley in the amount of $444,857.58. CPLR 7601 states in its entirety:
A special proceeding may be commenced to specifically enforce an agreement that a question of valuation, appraisal or other issue or controversy be determined by a person named or to be selected. The court may enforce such an agreement as if it were an arbitration agreement, in which case the proceeding shall be conducted as if brought under article seventy-five of this chapter. Where there is a defense which would require dismissal of an action for breach of the agreement, the proceeding shall be dismissed. Provided, however, that this section shall not apply to any agreement contained in the standard fire insurance policy of the state with the exception of an action to enforce the appraisal clause pursuant to section three thousand four hundred eight of the insurance law which shall not be enforced as an arbitration agreement.
(CPLR 7601). There is no provision contained within CPLR 7601 to confirm an appraisal award or to grant any relief by way of a motion in the absence of reliance upon CPLR 7502 (a). For these reasons, the motion by defendant CIC should be denied as procedurally defective. Notwithstanding, under CPLR 7510, an award shall be confirmed unless vacated or modified under the grounds set forth in CPLR 7511, including "corruption, fraud or misconduct in procuring the award" (CPLR 7511 [b][1][I]; see Goldfinger v Lisker, 68 N.Y.2d 225, 508 N.Y.S.2d 159 [1986]; Yakuel v Gluck, 2020 NY Slip. Op. 31251, 2020 WL 2219975 [Sup. Ct. New York County 2020][court applies standards under CPLR 7511 in determining whether an appraisal award should be vacated]). Inasmuch as the motion by defendant CIC to confirm the award and plaintiff's first cause of action to set aside the award are inextricably intertwined, the Court will address them together. Here, plaintiff asserts that the allegations of the complaint fall within the "misconduct" category of CPLR 7511. Indeed, there is sufficient evidence before the Court to evince, at the very least, questions of fact regarding the misconduct on the part of defendants Young and/or Corley. Such questions of fact cannot be decided on a motion to dismiss pursuant to CPLR 3211 (see, e.g., Flatley Hartmann, 138 A.D.2d 345, 525 N.Y.S.2d 637 [2d Dept 1988]; Grand Realty Company v City of White Plains, 125 A.D.2d 639, 510 N.Y.S.2d 172 [2d Dept 1986]). In this regard, before the Court is the affidavit of defendant Young. The Young affidavit does not refute the allegations of the complaint regarding the alleged misconduct during the appraisal process nor, among other things, the electronic communication sent by defendant Pisco referring to evidence that was provided to defendant Corley during the appraisal process but not to Pisco. Further, a review of the Young affidavit indicates a communication between Young and Corley only and that as a result of that communication, evidence was provided to Corley, seemingly without Pisco's knowledge. For these reasons as well, the award cannot be confirmed and the motion by defendant CIC requesting such relief is denied (see Goldfinger v Lisker, 68 N.Y.2d at 231, 508 N.Y.S.2d at 162 ["for an arbitrator to privately consult a party-litigant without the knowledge or consent of the other party to the proceeding raises serious concerns as to whether the award was procured by improper means"]; Matter of Paluch v Kohn, 204 A.D.2d 804, 806, 165 N.Y.S.3d 601 [2d Dept 2022]["the arbitrator's admitted consideration of evidence received from one party, without providing the other party the opportunity to respond, along with evidence in the record of ex parte communications, established by clear and convincing evidence that the arbitrator committed prejudicial misconduct"]; Yakuel v Gluck, supra at *5 [the "right of a party to have appraisers receive all pertinent evidence offered is a fundamental procedural right to which plaintiff was entitled, and its denial by the umpire and the company's appointed appraiser has been characterized as 'misconduct, in a legal sense' which is sufficient...to set aside the award in equity"][citations omitted]). Indeed, further fact-finding is necessary prior to a determination on the motion by defendant CIC to confirm the award and to dismiss the first cause of action. The Court notes that plaintiff has not moved to vacate the award and thus, was not required to submit clear and convincing evidence on its claim but rather discovery should proceed prior to a future determination on this count.
The Court now will address the other branches of CIC's motion to dismiss the breach of contract and related claims and the motions of defendants Pisco and Levine to dismiss the complaint as to them. On a motion to dismiss a complaint based on documentary evidence pursuant to CPLR 3211 (a) (1), such a motion will only be granted where the documentary evidence that forms the basis of the defense is such that it resolves all of the factual allegations as a matter of law, and conclusively disposes of the plaintiff's claims (see Turkat v Lalezarian Developers, Inc., 52 A.D.3d 595, 596, 860 N.Y.S.2d 153 [2d Dept 2008]). The court may grant a motion to dismiss pursuant to CPLR 3211 (a) (1) "only where the documentary evidence utterly refutes plaintiff's allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326 746 N.Y.S.2d 858 [2002]; Sobel v Ansanelli, 98 A.D.3d 1020, 951 N.Y.S.2d 533 [2d Dept 2012]; Harris v Barbera, 96 A.D.3d 904, 947 N.Y.S.2d 548 [2d Dept 2012]). In order to qualify as "documentary evidence" the printed materials "must be unambiguous and of undisputed authenticity" (Fontanetta v John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569 [2d Dept 2010]). For example, judicial records, mortgages, deeds, and contracts have been found to qualify as documentary evidence (see S & J Service Ctr., Inc. v Commerce Commercial Group, Inc., 178 A.D.3d 977, 112 N.Y.S.3d 584 [2d Dept 2019]). On the other hand, affidavits, deposition testimony, letters, and electronic mail are not considered documentary evidence under CPLR 3211 (a)(1) (see Gawrych v Astoria Federal Savings and Loan, 148 A.D.3d 681, 48 N.Y.S.3d 450 [2d Dept 2017]; Granada Condominium III Assn. v Palomino, 78 A.D.3d 996, 913 N.Y.S.2d 668 [2d Dept 2010]).
In determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Matneja v Zito, 163 A.D.3d 800, 801, 81 N.Y.S.3d 174 [2d Dept 2018]; see also Rosenblum v Island Custom Stairs, Inc., 130 A.D.3d 803, 803, 14 N.Y.S.3d 82 [2d Dept 2015]; Country Pointe at Dix Hills Home Owners Assn., Inc. v Beechwood Organization, 80 A.D.3d 643, 649, 915 N.Y.S.2d 117 [2d Dept 2011], quoting Schneider v Hand, 296 A.D.2d 454, 744 N.Y.S.2d 899 [2002]). The test of the sufficiency of a pleading is "'whether it gives sufficient notice of the transaction, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments'" (Hampshire Prop. v BTA Bldg. & Developing, Inc., 122 A.D.3d 573, 573, 996 N.Y.S.2d 129 [2d Dept 2014], quoting Leon v Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972 [1994]; see also JPMorgan Chase v J.H. Electric of NY, Inc., 69 A.D.3d 802, 803, 893 N.Y.S.2d 237 [2d Dept 2010], quoting Moore v Johnson, 147 A.D.2d 621, 621, 538 N.Y.S.2d 28 [1989]). Thus, the inquiry is whether the pleading states a cause of action, not whether the plaintiff has a cause of action (Sokol v Leader, 74 A.D.3d 1180, 904 N.Y.S.2d 153 [2d Dept 2010]). "Whether a plaintiff can ultimately establish [his or her] 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 [2005]). However, "conclusory averments of wrongdoing are insufficient to sustain a complaint unless supported by allegations of ultimate facts" (Muka v Greene County, 101 A.D.2d 965, 965, 477 N.Y.S.2d 444 [4th Dept 1984]; see also DiMauro v Metropolitan Suburban Bus Auth., 105 A.D.2d 236, 483 N.Y.S.2d 383 [2d Dept 1984]; Melito v Interboro Mut. Indem. Ins. Co., 73 A.D.2d 819, 423 N.Y.S.2d 742 [4th Dept 1979]; Greschler v Greschler, 71 A.D.2d 322, 422 N.Y.S.2d 718 [2d Dept 1979]). Thus, "factual allegations which are flatly contradicted by the record are not presumed to be true, and '[i]f the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action'" (Deutsche Bank Natl. Trust Co. v Sinclair, 68 A.D.3d 914, 915, 891 N.Y.S.2d 445 [2d Dept 2009], quoting Peter F. Gaito Architecture, LLC v Simone Dev Corp., 46 A.D.3d 530, 530, 846 N.Y.S.2d 368 [2d Dept 2007]). "Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141-42, 53 N.Y.S.3d 598 [2017]).
The elements of a cause of action for breach of contract are (1) the existence of a contract between plaintiff and defendant, (2) performance by the plaintiff, (3) defendant's failure to perform, and (4) damages resulting from such failure to perform (see 143 Bergen St., LLC v Ruderman, 144 A.D.3d 1002, 1003, 42 N.Y.S.3d 252 [2d Dept 2016]; JPMorgan Chase v J.H. Electric of NY, Inc., 69 A.D.3d 802, 803, 893 N.Y.S.2d 237 [2d Dept 2010]; Furia v Furia, 116 A.D.2d 694, 498 N.Y.S.2d 12 [2d Dept 1986]). Here, there is no argument made by defendant CIC that plaintiff has not pled the elements of a breach of contract claim. Rather, defendant CIC asserts that the award is final and binding and constitutes documentary evidence that precludes plaintiff's breach of contract cause of action. Inasmuch as the motion by defendant CIC to confirm the award is denied and the first cause of action to set aside the award is not subject to dismissal due to issues of fact regarding the alleged misconduct of defendants Young and/or Corley, the motion by defendant CIC to dismiss the third cause of action for breach of contract is denied. However, the second cause of action for a declaratory judgment that defendant CIC is obligated to provide full coverage for plaintiff's loss is considered "unnecessary and inappropriate", as plaintiff has "an adequate, alternative remedy in another form of action, such as breach of contract" (Tiffany Tower Condominium, LLC v Insurance Co. of the Greater NY, 164 A.D.3d 860, 863, 84 N.Y.S.3d 167 [2d Dept 2018]; see also 189 Schermerhorn Owners Co., LLC v Board of Mgrs. of the Be @Schermerhorn Condominium, 186 A.D.3d 1467, 131 N.Y.S.3d 377 [2d Dept 2020]). As such, the second cause of action for declaratory relief is dismissed.
Every contract implicitly includes a covenant of good faith and fair dealing (see 25 Bay Terrace Assoc., L.P. v Public Service Mut. Ins. Co., 144 A.D.3d 665, 667, 40 N.Y.S.3d 469 [2d Dept 2016]). "The implied covenant of good faith and fair dealing is a pledge that neither party to the contract shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruit of the contract, even if the terms of the contract do not explicitly prohibit such conduct" (id. at 667, 40 N.Y.S.3d at 471). Thus, this covenant is violated when a party to a contract acts in a manner that would deprive the other party of the right to receive the benefits of their agreement (see Gutierrez v Government Empls. Ins. Co., 136 A.D.3d 975, 25 N.Y.S.3d 625 [2d Dept 2016]). "Where the cause of action to recover damages for breach of the policy and the cause of action to recover damages for breach of the implied covenant of good faith and fair dealing allege different conduct on the part of the defendant and seek different categories and/or types of damages, the cause of action seeking damages for breach of the implied covenant of good faith and fair dealing should not be dismissed as duplicative of the cause of action alleging breach of contract" (East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 199 A.D.3d 881, 158 N.Y.S.3d 173 [2d Dept 2021]; see also F & R Goldfish Corp. v Furleiter, 210 A.D.3d 643, 178 N.Y.S.3d 87 [2d Dept 2022][cause of action alleging breach of implied covenant of good faith and fair dealing was not duplicative of breach of contract claim]; Tiffany Tower Condominium, LLC v Insurance Co. of the Greater NY, 164 A.D.3d 860, 863, 84 N.Y.S.3d 167 [2d Dept 2018]; Gutierrez v Government Empls. Ins. Co., supra). Here, accepting the allegations of the complaint as true, and affording plaintiff every favorable inference, the complaint states a cause of action for breach of the implied covenant of good faith and fair dealing (see East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, supra). As such, the motion by defendant CIC to dismiss the fourth cause of action is denied (see East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, supra; Tiffany Tower Condominium, LLC v Insurance Co. of the Greater NY, supra). Moreover, denial of this branch of the motion by defendant CIC is warranted based upon the questions of fact presented herein. In regard to this claim, consequential, punitive damages, and attorneys's fees are recoverable (see Perlbinder v Vigilant Ins. Co., 190 A.D.3d 985, 989, 141 N.Y.S.3d 141 [2d Dept 2021]["an alleged breach of the implied covenant of good faith and fair dealing may support an award of punitive damages"]; 25 Bay Terrace Assoc., L.P. v Public Service Mut. Ins. Co., 144 A.D.3d at 668, 40 N.Y.S.3d at 472 [plaintiff pled a cause of action alleging breach of the implied covenant of good faith and fair dealing and could assert punitive damages and attorney's fees therein]; Gutierrez v Government Empls. Ins. Co., supra [damages for breach of the implied covenant of good faith and fair dealing may include consequential damages for, among other things, failure to pay the claim within a reasonable amount of time]). Thus, the branch of the motion by defendant CIC to dismiss the demands for consequential and punitive damages and attorneys' fees is denied (see East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, supra).
Defendant CIC asserts that plaintiff failed to oppose the arguments raised in connection with the request for consequential damages. However, plaintiff's arguments in opposition were included in the discussion on the claim for breach of the implied covenant of good faith and fair dealing. The cases cited by defendant standing for the principle that consequential damages are only those contemplated by the parties as a probable consequence of a breach of the policy prior to or at the time of the execution of the policy involved motions for summary judgment (see Panasia Estates, Inc. v Hudson Ins. Co., 10 N.Y.3d 200, 203, 856 N.Y.S.2d 513 [2008]; Pandarakalam v Liberty Mut. Ins. Co., 137 A.D.3d 1234, 29 N.Y.S.3d 413 [2d Dept 2016]). Indeed, it has been held that "whether such damages were, in fact, forseeable should not be decided on a motion to dismiss and must await a fully developed record" (D.K. Prop., Inc. v National Union Fire Ins. Co. of Pittsburgh, Pa., 168 A.D.3d 505, 92 N.Y.S.3d 231 [1st Dept 2019]).
The fifth cause of action is dismissed, as New York does not recognize a private right of action for violation of section 2601 of the Insurance Law (see Kantrowitz v Allstate Indem. Co., 48 A.D.3d 753, 853 N.Y.S.2d 151 [2d Dept 2008] citing Rocanova v Equitable Life Assur. Soc'y, 83 N.Y.2d 603, 614, N.Y.S.2d 339, 343 [1994]). In addition, New York does not recognize a separate cause of action for bad faith refusal to comply with an insurance contract (s ee Schlusselberg v New York Central Mutual Fire Ins. Co., 206 A.D.3d 682, 169 N.Y.S.3d 657 [2d Dept 2022] citing Smith v General Acc. Ins. Co., 91 N.Y.2d 648, 674 N.Y.S.2d 267 [1998]). However, a claim can be stated for bad faith refusal to settle (see Schlusselberg v New York Central Mutual Fire Ins. Co., supra). For such a bad faith claim to withstand a motion to dismiss, the complaint must allege that the conduct of the defendant "constituted a gross disregard" of plaintiff's interest, that is, "a deliberate or reckless failure to place on equal footing the interests of its insured with its own interests when considering a settlement offer" (Schlusselberg v New York Central Mutual Fire Ins. Co., 206 A.D.3d at 684, 169 N.Y.S.3d 657). Here, the sixth cause of action alleges, inter alia, that defendant CIC, along with other named defendants who have not moved to dismiss herein, acted in bad faith when, without basis, it refused to fully satisfy plaintiff's claim, by failing to conduct a prompt and proper investigation, by failing to timely negotiate a settlement with plaintiff, and "deliberately and intentionally" understating plaintiff's damages to avoid paying the full amount claimed by plaintiff under the policy. Accepting the allegations of the complaint as true, and affording plaintiff every favorable inference, the Court is not inclined to dismiss this cause of action, especially where, as here, there are questions presented that cannot be decided on a motion to dismiss. The Court further notes that the sixth cause of action is not duplicative of the breach of the implied covenant of good faith and fair dealing count, as different facts are alleged on this claim as against defendant CIC.
Accepting the facts alleged in the complaint as true and affording every reasonable inference therein, the eleventh cause of action alleging a violation of GBL 349 as against defendants Levine and Pisco has not been stated, as this statute does not apply to private contract disputes, such as is alleged herein (New York Univ. v Continental Ins. Co., 87 N.Y.2d 308, 320, 639 N.Y.S.2d 283 [1995]; Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 N.Y.2d 20, 24-27, 623 N.Y.S.2d 529, 532-33 [1995]; Anthony Tranchina Gen. Constr. Corp. v Greco Bros. Ready Mix Concrete Co., 138 A.D.3d 647, 29 N.Y.S.3d 450 [2d Dept. 2016]; Teller v. Bill Hayes, Ltd., 213 A.D.2d 141, 630 N.Y.S.2d 769 [2d Dept. 1995]). In that regard, it has been determined that GBL 349 is a consumer protection statute aimed at consumer-oriented conduct that has a broader impact on consumers at large (Teller v. Bill Hayes, Ltd., supra). The eleventh cause of action is devoid of any such facts and thus, is dismissed.
Furthermore, no claims can be asserted against defendants Levine and Pisco under the agreements with their respective corporate entities, as they signed those agreements as agents for their respective corporations and there is nothing in the agreements indicating that they were to be personally bound by or liable under those agreements (see Stamina Prods., Inc. v Zintec USA, Inc., 90 A.D.3d 1021, 935 N.Y.S.2d 629 [2d Dept 2011]; Stern v H. DiMarzo, Inc., 77 A.D.3d 730, 909 N.Y.S.2d 480 [2d Dept 2010] [citations omitted]). As to defendant Levine, the agreement clearly states that plaintiff is retaining the Levine Group, Inc. As to defendant Pisco, the document shows that it was signed by him on behalf of defendant Precision, the party listed as the appraiser for plaintiff. Further, claims for professional negligence against defendants Levine and Pisco do not lie, as there is no common law duty independent of the contract for which they can be held liable. An alleged breach of contract cannot be considered a tort unless a legal duty independent of the contract itself has been violated (see Clark-Fitzpatrick, Inc. v Long Island R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 656 [1987]; 298 Humboldt, LLC v Torres, 197 A.D.3d 1081, 153 N.Y.S.3d 507 [2d Dept 2021]). This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract (see 298 Humbolt v Torres, supra; see also Rich v New York Cent. & Hudson Riv R. R. Co., 87 NY 382 [1882]; Riffat v Continental Ins. Co., 104 A.D.2d 301, 478 N.Y.S.2d 635 [1st Dept 1984]). Therefore, "absent a duty of care, there is no breach, and without breach there can be no liability" for negligence (Cadet v James B. Nutter & Co., 133 A.D.3d 561, 562, 19 N.Y.S.3d 307 [2d Dept 2015]). Plaintiff has not alleged such a duty or the elements of a professional negligence claim against defendants Levine and Pisco, and thus, the ninth and tenth causes of action are dismissed as to these defendants, respectively (see Health Acquisition Corp. v Program Risk Mgt., Inc., 105 A.D.3d 1001, 1004, 964 N.Y.S.2d 554 [2d Dept 2013]).
Accordingly, the motion by defendant The Cincinnati Insurance Company is granted only to the extent that the second and fifth causes of action as asserted against it are dismissed. The motions by defendants Levine and Pisco are granted, and the claims asserted against them in the complaint are dismissed.
The foregoing constitutes the decision and Order of the Court.