Opinion
1520
August 14, 2003.
Order, Supreme Court, New York County (Herman Cahn, J.), entered January 15, 2002, as amended by an order, same court and Justice, entered April 30, 2002, which denied in part and granted in part defendant's motion to dismiss the amended complaint, unanimously modified, on the law, to grant defendant's motion to the further extent of dismissing plaintiff's third cause of action alleging violation of General Business Law § 349, and otherwise affirmed, without costs.
Jared Stamell, for plaintiff-respondent-appellant.
Jeffrey S. Lichtman, for defendant-appellant-respondent.
Before: Tom, J.P., Andrias, Sullivan, Marlow, JJ.
Accepting plaintiff's factual allegations as true and resolving all inferences which reasonably flow therefrom in plaintiff's favor, as we must on this motion to dismiss pursuant to CPLR 3211(a)(7)(see Cron v. Hargro Fabrics, Inc., 91 N.Y.2d 362, 366), we conclude, as did the motion court, that plaintiff, by alleging that defendant insurer's manipulation of its surplus resulted in an inequitable dividend allocation to participating whole life policy holders such as herself, i.e., an allocation not reflective of the actual earnings potential of the amounts contributed to the surplus by whole life policy holders, has stated a claim for breach of her contract of insurance.
Contrary to defendant's argument, the primary jurisdiction doctrine (see Staatsburg Water Co. v. Staatsburg Fire Dist., 72 N.Y.2d 147, 156) does not require that plaintiff's claims be decided by the Department of Insurance. There has been no showing of a "clear legislative intent to preempt [the] common-law . . . rights" plaintiff seeks to vindicate in this action (Batas v. Prudential Ins. Co, 281 A.D.2d 260, 261, citing Hechter v. New York Life Ins. Co., 46 N.Y.2d 34, 39).
Nonetheless, plaintiff's causes for fraudulent conveyance, failure to disclose, and fraud were properly dismissed. Plaintiff failed to allege the type of wrongful conveyance contemplated by Debtor and Creditor Law § 276 (cf. Wall St. Assocs. v. Bradsky, 257 A.D.2d 526, 528-529). Nor did she state a claim for failure to disclose, since she has not alleged facts from which existence of the fiduciary or confidential relationship between the parties necessary to support such a claim may be inferred (see Gaidon v. Guardian Life Ins. Co. of Am., 255 A.D.2d 101, 102, affd in relevant part 94 N.Y.2d 330). Plaintiff's claim for fraud was properly dismissed because, inter alia, she did not allege the elements of the tort with sufficient particularity (see CPLR 3016[b]); LaSalle Natl. Bank v. Ernst Young, LLP, 285 A.D.2d 101, 109).
We modify only to grant defendant's motion to the further extent of dismissing plaintiff's third cause of action in which plaintiff, in her individual capacity, alleges a particular, fact specific violation of General Business Law § 349, since plaintiff is concededly without standing to assert a General Business Law § 349 claim (see Goshen v. Mut. Life Ins. Co. of New York, 98 N.Y.2d 314).
We have considered the parties' remaining arguments for affirmative relief and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.