Superior Officers Council Health & Welfare Fund v Empire HealthChoice Assur., Inc.

Superior Officers Council Health & Welfare Fund v Empire HealthChoice Assur., Inc. 2011 NY Slip Op 08449 Decided on November 21, 2011 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 21, 2011
No. 244 SSM 40

[*1]Superior Officers Council Health & Welfare Fund, et al., Appellants,

v

Empire HealthChoice Assurance, Inc., & c., Respondent.




Submitted by Joel Spivak, for appellants.
Submitted by Randy M. Mastro, for respondent.


MEMORANDUM:

The order of the Appellate Division should be affirmed, with costs. [*2]

The Appellate Division properly construed the plain language of the agreement and determined that plaintiffs' failure to adopt a drug formulary bars them from sharing in certain rebates that defendant received from prescription drug manufacturers. Additionally, plaintiffs fail to state a cause of action for breach of fiduciary duty separate and apart from their breach of contract claim.
* * * * * * * * * * * * * * * * *
On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs, in a memorandum. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
Decided November 21, 2011