New York Court of Appeals, 1983

Dano v. Royal Globe Insurance

New York Court of Appeals · Decided June 7, 1983

59 N.Y.2d 827; 464 N.Y.S.2d 741; 451 N.E.2d 488; 1983 N.Y. LEXIS 3156

Cases that cite this one

28 later published cases cite this decision. The 25 that cite it most often are listed here.

General Star National Insurance Company v. Liberty Mutual Insurance Company (3d Cir. 1992)
County Vanlines Inc. v. Experian Information Solutions, Inc. (District Court, S.D. New York 2004)
Tinlee Enterprises, Inc. v. Aetna Casualty & Surety Co. (District Court, E.D. New York 1993)
John W. Riordan Jane Fox v. Nationwide Mutual Fire Insurance Company (2d Cir. 1992)
Payne v. Kathryn Beich & Nestle (District Court, E.D. New York 1988)
Eccobay Sportswear, Inc. v. Providence Washington Insurance (District Court, S.D. New York 1984)
Smith v. Fireman's Fund Insurance (District Court, E.D. Pennsylvania 1983)
Pavia v. State Farm Mutual Automobile Insurance (Appellate Division of the Supreme Court of New York 1992)
Belco Petroleum Corp. v. AIG Oil Rig, Inc. (Appellate Division of the Supreme Court of New York 1991)
Rein Monroe Associates v. Royal Insurance Co. of America (Appellate Division of the Supreme Court of New York 1991)
VanNostrand v. New York Cent. Mut. Fire Ins. Co. (Appellate Division of the Supreme Court of New York 2020)
Baumblit Construction Corp. v. County of Nassau (Appellate Division of the Supreme Court of New York 2010)
Regan v. New York State Department of Civil Service (Appellate Division of the Supreme Court of New York 2001)
Dillon v. City of New York (Appellate Division of the Supreme Court of New York 1999)
Jonas v. New York Central Mutual Fire Insurance (Appellate Division of the Supreme Court of New York 1997)
Myers, Smith & Granady, Inc. v. New York Property Insurance Underwriting Ass'n (Appellate Division of the Supreme Court of New York 1994)
Pavia v. State Farm Mutual Automobile Insurance (N.Y. 1993)
Sanna v. Potter (Appellate Division of the Supreme Court of New York 1992)
King v. Tanner (New York Supreme Court 1989)
Kasachkoff v. City of New York (N.Y. 1986)
Kaplan v. MacNamara (Appellate Division of the Supreme Court of New York 1986)
Lee v. Weinstein (Appellate Division of the Supreme Court of New York 1986)
Philips v. Republic Insurance (N.Y. 1985)
Kasachkoff v. City of New York (Appellate Division of the Supreme Court of New York 1985)
Kurrus v. CNA Insurance (Appellate Division of the Supreme Court of New York 1985)

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

*829OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The first cause of action for defamation is against the Andrews law firm, Royal Globe and Patrick DiDomenico, Royal’s manager. It concerns a disclaimer letter written by the Andrews law firm to plaintiffs, their attorney and their adjuster. Nothing in the complaint or affidavits submitted on plaintiffs’ behalf presents a triable issue as to publication by Royal Globe or DiDomenico. As to the Andrews firm, although there is no question of publication, we agree with the Appellate Division that the letter is qualifiedly privileged. It was, therefore, plaintiffs’ burden to show that defendant Andrews acted with malice and, there being nothing to establish that examination of Turnbull could reasonably be expected to result in evidence of malice on the part of the Andrews firm and no other examination having been requested, CPLR 3212 (subd [f]) provided no basis for denial of the motion of defendants (other than Turnbull) for summary judgment. As we held in Zuckerman v City of New York (49 NY2d 557, 562): “one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.”

The third cause of action was also properly dismissed. Assuming that section 40-d of the Insurance Law can be read to create a private cause of action (see Hubbell v Trans World Life Ins. Co. of N. Y., 50 NY2d 899, 901), we find in the papers no “evidentiary proof in admissible form” of a “general business practice” on the part of Royal Globe, as that section requires. Nor, even if we assume that bad-faith cases such as Gordon v Nationwide Mut. Ins. Co. (30 NY2d 427), upon which plaintiffs rely, apply to a failure to settle an insured’s first-party claim under a fire insurance policy, as distinct from the failure to defend or settle a third party’s claim against the insured as required *830by a liability policy (cf. Halpin v Prudential Ins. Co. of Amer., 48 NY2d 906, 907-908), have plaintiffs presented evidentiary proof of the gross disregard of the insured’s rights which are an essential element of such a cause of action.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer concur; Judge Simons taking no part.

Order affirmed, with costs, in a memorandum.

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