Lanter v Allstate Ins. Co.
2012 NY Slip Op 30984(U)
April 4, 2012
Supreme Court, Nassau County
Docket Number: 13113/11
Judge: Karen V. Murphy
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Short Form Order
SUPREME COURT - STATE OF NEW YORK
TRIAL TERM. PART 11 NASSAU COUNTY
Justice of the Supreme Court
BERNARD LANTER, M. D.,
Index No. 13113/11
Motion Submitted: 2/22/12
Motion Sequence: 002
-againstALLSTATE INSURANCE COMPANY and JAMES
The following papers read on this motion:
Notice of Motion/Order to Show Cause........................
Answering Papers........................... ......... ......................
Briefs: Plaintiff slPetitioner ' s........................................
Defendant' slRespondent' s............................... ...
Motion pursuant to CPLR
amended complaint is granted.
3211(a)(l), (5) and (7) by defendants to dismiss
That branch of defendants '
imposition of sanctions against plaintiff and his counsel is denied.
The amended complaint herein asserts three causes of action for breach of contract
against defendant Allstate Insurance Company (Allstate); for negligence against defendant
tort against the
Allstate and its employee , defendant James
Jerocki; and for
Plaintiffs 2005 Mercedes Benz SL500 automobile , which was insured under a policy
issued by defendant Allstate , sustained substantial damage in an accident on December 27
2008. Each ofthe claims asserted in the amended complaint arise out of a dispute between
the cost of repairs to restore plaintiffs vehicle to its pre-accident
condition. Mid- Island Collsion , to which plaintiff took the vehicle , determined that the cost
of necessary repairs would be $34 177. 36. Defendant Allstate s adjuster inspected the
vehicle and offered the sum of $8,457. 55
to cover the repair costs. Plaintiff declined the
Since the parties could not agree on another shop to repair the vehicle , the plaintiff
invoked the right to an appraisal pursuant to the appraisal clause set forth in the subject
policy which states that:
Both you and us have a right to demand an appraisal of the loss.
Each wil appoint and pay a qualified appraiser. Other appraisal
The two appraisers , or a judge of a
court of record , wil choose an umpire. Each appraiser wil state the
actual cash value and the amount of loss. If they disagree , they
submit their differences to the umpire. A written decision by any two
of these three persons wil determine the amount of the loss.
expenses wil be shared equally.
Because the designated appraisers were unable to resolve the dispute , or agree upon an
umpire , an umpire was named by the court.
Defendant Allstate seeks dismissal of this action predicated on the contention that the
dispute herein has been adjudicated to its final conclusion and the claims asserted are
action alleged are not viable in that:
, barred by the doctrine of
Defendant further argues that the causes of
a) plaintiff has failed to state a specific provision of the contract of
which defendant is in breach;
b) a claim for negligent breach of contract does not exist; and
c) plaintiffs claim for prima facie tort is barred by the statute of
Order of the Hon. Daniel Palmieri entered September 21 , 2010 in response to petition by
Allstate in which Dr. Lanter joined.
Plaintiff counters arguing that defendant Allstate breached the appraisal clause of the
insurance policy herein by refusing to accept plaintiff s designated appraise and by failing
to engage in the appraisal process until made to do so by the order of Hon. Daniel Palmieri
dated March 30 , 2010 declaring that plaintiff was entitled to proceed with the appraisal
Even though defendant Allstate did , in fact , participate in the appraisal process
plaintiff maintains that the defendant insurer breached the appraisal provision of the policy
by refusing to accept the appraiser of plaintiffs choice. Moreover, plaintiff argues that
gives rise to a negligence claim. Plaintiff further contends that the claims asserted in the
inasmuch as the prior action was brought
solely to compel defendant Allstate to go through the appraisal process.
defendant Allstate s purported unreasonable refusal to accept plaintiffs
amended complaint are not subject to
To succeed on a motion to dismiss pursuant to CPLR ~ 3211 (a)( 1), the documentary
evidence that forms the basis of the defense must be such that it resolves all factual issues
(Marist Coli. v. Chazen
as a matter of law and conclusively disposes of
2d 859 (2dDept.
lv to appdism
Envtl. Servs., Inc. 84 A. D.3d 1180 , 1181 923 N.
3d 893 (2011)).
Notwithstanding plaintiffs assertions to the contrary, the amended complaint fails to
the appraisal provision given that defendant did
state a breach of contract claim
in fact , paricipate in and complete the appraisal process and did , in fact , pay the full amount
of the appraisal award of $34 177. 36 as well as court awarded interest in the amount of
The unambiguous language of the provision at issue does not require that defendant
accept plaintiff s choice of an appraiser. It provides only that " each wil appoint and pay a
qualified appraiser. " The language does not preclude a part from challenging the choice of
an appraiser on the grounds of prejudice as was done here. The provision further anticipates
that , in the event that the two appraisers chosen by the parties are unable to agree an umpire
the court as was necessar in this case.
would be chosen either by the two appraisers
It is the court' s responsibilty to determine the rights and obligations of parties under
an insurance contract based on the specific language
of a policy whose unambiguous
Allstate apparently rejected plaintiff s choice of an appraiser because of his alleged
relationship with Mid- Island Collision , plaintiffs choice of repair shop, as either an employee or
consultant. In a decision dated March 30 , 2010 , the court ruled that Lawrence Montenez could
in fact , serve as a party appointed appraiser. Allstate named Mark Nathan as its appraiser.
(Cali v. Merrimack Mut. Fire
provisions must be given their plain and
9 N. Y.3d 818
2d 128 (2d Dept.
3d 415 416- 417 841 N.
Ins. Co. 43 A.
(2008). When the terms of a written contract are clear and unambiguous , the intent of the
parties must be found within the four corners of the contract giving a practical interpretation
(Matter of M atco-Norca
to the language employed and the paries
Inc. 22 A. D.3d 495 496 802 N. S.2d 707 (2d Dept. , 2005)). The words and phrases used
in an agreement must be given their plain meaning so as to define the rights of the parties.
2d 613 (1971)). A court
29N. 2d 302 308 277 N. 2d 641 327 N.
may not write into a contract conditions the parties did not themselves insert by adding or
excising terms under the guise of construction , nor may it construe the language in such a
(Petracca v. Petracca 302 A. 2d 576
way as to distort the contract'
2d 587 (2d Dept. , 2003)).
577 , 756 N.
' reasonable expectations .
(Laba v. Carey,
s apparent meaning.
Plaintiffs breach of contract cause of action , which flies in the face of the very
language of the contract itself, is not viable.
As noted by defendant Allstate , plaintiffs second cause of action alleging that said
defendant and its employee , defendant James Jerocki failed to act as a reasonably prudent
insurance carrier would have acted under the circumstances " by refusing to accept plaintiff s
choice of an appraiser , is similarly unavailng.
Plaintiff has not alleged facts that would support the existence of a tort claim for
negligence. A tort may arise from the breach of a legal duty independent of the contract.
Merely alleging that the breach of contract arose from a lack of due care or failure to act
(Clarkreasonably " wil not transform an alleged simple breach of
Fitzpatrick, Inc. v. Long Island R. R. Co. 70 N. 2d 382 , 389 , 516 N. 2d 190 , 521
2d 653 (1987)). A simple breach of contract wil not be considered a tort unless a
contract into a tort.
(Brown v. Wyckoff Hgts. Med.
2d 570 (2d Dept. , 2006)). This legal duty must spring
Ctr. 28 A. 3d 412 413 811 N.
from circumstances extraneous to , and not constituting elements of, the contract although it
may be connected with , and dependent on , the contract. Simply alleging a duty of care wil
(Clemens Realty, LLC v. New York
2d 172 (2d Dept. , 2008)). Plaintiff has
City Dept. ofEduc. 47 A. D.3d 666 667 850 N.
failed to allege or demonstrate that defendants owed him a legal duty independent of a
contractual duty, and that defendants breached that independent duty.
legal duty independent of the contract has been violated.
not transform an alleged breach of contract into a tort.
intentional inflction of
damages; without any excuse or
acts , which would otherwise be
justification; by an act or series
The requisite elements of a cause of action sounding in
2d 141 (2d Dept. , 2011)). For
tort the genesis which wil
make a lawful act unlawful must be a malicious one unmixed with any other and exclusively
directed to injury and damage of another. (Beardsley v. Kilmer 236 N. Y. 80 , 90 236 N.
3d 557 ,
558 , 927 N.
purposes of a cause of action to recover damages for
, 140 N. E. 203 (1923)).
tort since the allegations asserted
in the amended complaint fail to show that defendant acted with disinterested malevolence.
Plaintiff has failed to state a claim for
There is no recovery in
s otherwise lawful acts.
tort unless malevolence
(DeNaro v. Rosalia 59 A. D.3d
sole motive for a
588 , 873 N.
697 (2d Dept. , 2009)).
Even viewing the allegations of the complaint as true , and affording the plaintiffthe
(Sheridan v. Carter 48 A. 3d 444 445 851 N.
248 (2d Dept. , 2008)), the allegations of the complaint are insufficient to state causes of
tort. The second and third causes of action must
therefore , be dismissed pursuant to CPLR ~ 3211(a)(7).
benefit of every favorable inference
action either for negligence or
Additionally, the third cause of action is barred by the one year statute oflimitations.
(CasadeMeadowslnc. (Cayman Is.) v. Zaman 76A. D.3d 917 921 908 N.
Inasmuch as plaintiff s claims are dismissed based on documentary evidence and
failure to state a cause of action , it is unnecessary to reach the merits
The court notes , however , the decision ofthe Hon. Daniel Palmieri entered March
, 2011 wherein he states that "the Court agrees that Allstate never breached the contract
of the defense of
of insurance to the extent that it never refused to pay on the claim.
The finding is the law of the case. The doctrine seeks to prevent relitigation of issues
2d 681 (2d Dept. , 2006)).
Auth. , 29 A. 3d 721 , 722 815 N.
of law that have already been determined at an earlier stage of the proceeding.
v. New York City Hous.
That branch of defendants ' motion that seeks to impose costs and sanctions against
plaintiff and his counsel is denied.
Pursuant to Rules of the Chief Administrator of the Courts Part 130 as set forth in 22
NYCRR 9 130- 1(a), the court may award to any part or attorney in a civil matter costs in
the form of reimbursement for actual expenses reasonably incurred and reasonable attorney
fees , resulting from frivolous conduct.
For the purpose of this Part , conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported
argument for an extension , modification or reversal of existing law; (2) it is undertaken
primarily to delay or prolong the resolution of the litigation , or to harass or maliciously injure
NYCRR 130- 1/cf).
another; or (3) it asserts material factual statements that are false (22
The decision as to whether to award sanctions is within the sound discretion of the
(Kamen v. Diaz-Kamen 40 A. D.3d 937 , 837 N. S.2d 666 (2d Dept. , 2007)). In
order to impose sanctions , the court must find that plaintiff s causes of action assert material
falsehoods or are without legal merit and were undertaken primarily to delay or prolong the
(Joan 2000, Ltd. v. Deco, Constr.
litigation , or to harass or maliciously injure
2d 611 (2d Dept. , 2009)). No such conduct has been
Corp. 66 A. D.3d 841 842 886 N.
shown to exist here.
The foregoing constitutes the Order of this Court.
Dated: April 4 , 2012
Mineola , N.
APR 09 2012
COUNTY CLERK' S OFFICE