Opinion
5132 Index 161536/14
12-05-2017
Margot HEAD, etc. Plaintiff–Appellant, v. EMBLEM HEALTH, et al., Defendants–Respondents.
Law Offices of David L. Trueman, P.C., New York (David L. Trueman of counsel), for appellant. Christian & Barton, LLP, Richmond, VA (Henry I. Willett, III of the bar of the State of Virginia, admitted pro hac vice, of counsel), for respondents.
Law Offices of David L. Trueman, P.C., New York (David L. Trueman of counsel), for appellant.
Christian & Barton, LLP, Richmond, VA (Henry I. Willett, III of the bar of the State of Virginia, admitted pro hac vice, of counsel), for respondents.
Richter, J.P., Manzanet–Daniels, Andrias, Kern, Singh, JJ.
Order, Supreme Court, New York County (Joan B. Lobis, J.), entered October 11, 2016, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the causes of action for fraud and bad faith breach of insurance contract, unanimously affirmed, without costs.
In support of the fraud causes of action, the complaint fails to allege sufficient facts to establish the element of a material misrepresentation (see Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976 [2009] ). While the Attorney General's investigation documented numerous instances of defendants' misconduct, contrary to plaintiff's contention, it did not detail instances of fraud. Plaintiff's allegation that defendants entered into the insurance contract with an undisclosed intention not to perform in accordance with the contract's terms is insufficient to establish a misrepresentation or a material omission (see New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763 [1995] ). The fraud causes of action were correctly dismissed as duplicative of the breach of contract cause of action (see Coppola v. Applied Elec. Corp., 288 A.D.2d 41, 42, 732 N.Y.S.2d 402 [1st Dept. 2001] ).
There is no independent cause of action for bad faith breach of insurance contract arising from an insurer's failure to perform its obligations under an insurance contract (see Orient Overseas Assoc. v. XL Ins. Am., Inc., 132 A.D.3d 574, 18 N.Y.S.3d 381 [1st Dept. 2015] ; McGowan v. Great N. Ins. Co., 78 A.D.3d 1137, 911 N.Y.S.2d 663 [2d Dept. 2010] ).