Grazioli v. Encompass Insurance
Opinion of the Court
Ordered that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendants’ motion which were pursuant to CPLR 3211 (a) (7) to dismiss the second and third causes of action insofar as asserted against the defendant Encompass Insurance Company and to dismiss so much of the complaint as sought to recover attorneys’ fees from the defendant Encompass Insurance Company, and substituting therefor provisions granting those branches of the defendants’ motion; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant.
“When assessing the adequacy of a complaint in light of a CPLR 3211 (a) (7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide [the] plaintiff. . . ‘the benefit of every possible favorable inference’ ” (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005], quoting Leon v Martinez, 84 NY2d 83, 87 [1994]; see McKenzie v Meridian Capital Group, LLC, 35 AD3d 676, 676 [2006]).
Here, the Supreme Court improperly denied that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the second cause of action insofar as asserted against the appellant alleging a breach of the implied covenant of good faith. That claim “is duplicative of the breach of contract claim” (Paterra v Nationwide Mut. Fire Ins. Co., 38 AD3d 511, 513 [2007]; see New York Univ. v Continental Ins. Co., 87 NY2d 308, 319-320 [1995]; Tag 380, LLC v ComMet 380, Inc., 40 AD3d 1 [2007]; see also Bettan v Geico Gen. Ins. Co., 296 AD2d 469, 470 [2002]).
The Supreme Court also improperly denied that branch of the defendants’ motion which was to dismiss the third cause of action for punitive damages insofar as asserted against the appel
Insureds, such as the plaintiffs here, “may not recover the expenses incurred in bringing an affirmative action against an insurer to settle [their] rights under the policy” (New York Univ. v Continental Ins. Co., supra at 324; see Flores-King v Encompass Ins. Co., supra). Thus, the Supreme Court improperly denied that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss so much of the complaint as sought to recover attorneys’ fees from the appellant.
The parties’ remaining contentions are without merit. Spolzino, J.P., Fisher, Covello and McCarthy, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.