Appellate Division of the Supreme Court of New York, 2005

Zawahir v. Berkshire Life Insurance

Appellate Division of the Supreme Court of New York · Decided October 31, 2005

22 A.D.3d 841; 804 N.Y.S.2d 405

Cases that cite this one

25 later published cases cite this decision.

Endemann v. Liberty Ins. Corp. (District Court, N.D. New York 2019)
Klein v. State Farm Ins. Co. (Appellate Division of the Supreme Court of New York 2021)
Hastings Development, LLC v. Evanston Insurance (District Court, E.D. New York 2015)
Euchner-USA, Inc. v. Hartford Casualty Insurance (2d Cir. 2014)
Kantrowitz v. Allstate Indemnity Co. (Appellate Division of the Supreme Court of New York 2008)
Dersam v. Ontario Ins. Co. (Appellate Division of the Supreme Court of New York 2025)
601 East 226 St LLC v. United States Liability Insurance Company (USLI) (District Court, S.D. New York 2025)
Davin v. Plymouth Rock Assur. Co. of N.Y. (Appellate Division of the Supreme Court of New York 2024)
Sakandar v. American Tr. Ins. Co. (Appellate Division of the Supreme Court of New York 2024)
1555 Jefferson Road LLC v. Travelers Property Casualty Company of America (District Court, W.D. New York 2023)
TD Bank, N.A. v. KB Insurance Co., Ltd. (United States Bankruptcy Court, E.D. New York 2023)
Morales v. Arrowood Indem. Co. (Appellate Division of the Supreme Court of New York 2022)
Ciobanu v. State Farm Fire And Casualty Company (District Court, E.D. New York 2022)
42-50 21st Street Realty LLC v. First Central Savings Bank (District Court, E.D. New York 2022)
Kastin v. GEICO Gen. Ins. Co. (Appellate Division of the Supreme Court of New York 2021)
Valentini v. Group Health Incorporated (District Court, S.D. New York 2021)
Valentini v. Group Health Incorporated (District Court, S.D. New York 2021)
Guy v. The Automobile Insurance Company of Hartford, Connecticut (District Court, E.D. New York 2020)
Euchner-USA, Inc. v. Hartford Cas. Ins. Co. (2d Cir. 2014)
Wilner v. Allstate Insurance (Appellate Division of the Supreme Court of New York 2010)
McGowan v. Great Northern Insurance (Appellate Division of the Supreme Court of New York 2010)
Paterra v. Nationwide Mutual Fire Insurance (Appellate Division of the Supreme Court of New York 2007)
Johnson v. Allstate Insurance (Appellate Division of the Supreme Court of New York 2006)
Litvinov v. Hodson (Appellate Division of the Supreme Court of New York 2006)
Alexander v. Geico Insurance (Appellate Division of the Supreme Court of New York 2006)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action, inter alia, to recover damages for breach of certain insurance policies, the defendant appeals from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated December 23, 2003, as denied that branch of its motion which was pursuant to CPLR 3211 (a) (7) to dismiss the third cause of action, without prejudice to renew upon completion of discovery.

*842Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was to dismiss the third cause of action pursuant to CPLR 3211 (a) (7) is granted, and that cause of action is dismissed.

The plaintiff insured brought this action against the defendant insurer after the defendant ceased making payments under certain disability policies issued by it to him. The complaint contained three causes of action. The third cause of action, which is the subject of this appeal, did not identify the common-law or statutory violation purportedly alleged therein. However, reading that cause of action liberally, and giving the plaintiff the benefit of every reasonable inference that may be drawn therefrom, as we must on a motion to dismiss pursuant to CPLR 3211 (a) (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we conclude that the third cause of action alleges either “bad faith” in the insurance context, deceptive business practices in violation of General Business Law § 349, or unfair claims settlement practices in violation of Insurance Law § 2601. However viewed, the Supreme Court should have granted that branch of the motion which was to dismiss the third cause of action.

Assuming that the plaintiff intended to allege “insurance bad faith,” he failed to state a cause of action, as “there is no separate cause of action in tort for an insurer’s bad faith failure to perform its obligations” under an insurance contract (Continental Cas. Co. v Nationwide Indem. Co., 16 AD3d 353, 354-355 [2005]; see Royal Indem. Co. v Salomon Smith Barney, 308 AD2d 349, 350 [2003]; Bettan v Geico Gen. Ins. Co., 296 AD2d 469, 470 [2002]).

Assuming that the plaintiff intended to allege a violation of General Business Law § 349, he failed to state a cause of action. This action simply involves a private contract dispute involving coverage under the subject policies, in contrast to the consumer-oriented, deceptive conduct aimed at the public at large that General Business Law § 349 is designed to address (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 320-321 [1995]; Goldblatt v MetLife, Inc., 306 AD2d 217 [2003]; Korn v First UNUM Life Ins. Co., 277 AD2d 355, 356 [2000]).

Finally, assuming that the plaintiff intended to allege a violation of Insurance Law § 2601, that statute does not authorize a private cause of action (see Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 614 [1994]).

Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was to dismiss the third cause of action. Florio, J.P., Crane, Mastro and Rivera, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.