Peralta v Figueroa

[*1] Peralta v Figueroa 2007 NY Slip Op 52184(U) [17 Misc 3d 1128(A)] Decided on November 14, 2007 Supreme Court, Kings County Knipel, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 14, 2007
Supreme Court, Kings County

Francisco Peralta, et al., Plaintiffs,

against

Luis Figueroa, et al., Defendants.



28093/06



Attorney for Plaintiff

Jacob Rabinowitz, Esq.

30 Vesey Street - 15 Fl.

New York, NY 10007

(212) 619-2534

Attorneys for Defendants

Robert M. Sullivan, Esq. (The Robert Plan Corporation & Hudson Insurance)

Sara B. Feldman, Esq.

Sullivan, Manarel, LLP

1350 Broadway - Suite 1001

New York, NY 10018

(212) 695-0910

Lawrence S. Knipel, J.

Upon the foregoing papers, defendants American International Group, Inc. (AIG) and American International Underwriters Corporation (AIU) move, and Lincoln General Insurance Company (Lincoln), separately moves, pursuant to CPLR 3211(a)(7), to dismiss the fifth, seventh, and eighth causes of action of the complaint of plaintiffs Francisco Peralta et al. insofar as asserted against them. Defendants The Robert Plan Corporation (RPC) and [*2]The Hudson Insurance Company (Hudson) move, pursuant to CPLR 3212, to dismiss the second, fifth, seventh and eighth causes of action of the complaint.

This is a purported class action involving insurance fraud allegedly perpetrated upon livery car drivers and/or owners (the livery car plaintiffs or plaintiffs) seeking liability insurance for their livery cars.[FN1] The 153-paragraph complaint alleges, in pertinent part, that defendant Louis Figueroa, and other defendant insurance brokers and their associates, called "runners," "were engaged in a fraudulent scheme" in which they purportedly solicited "high risk" liability insurance business, available "only from certain companies, insurers, insurance agencies and/or brokers," including defendant RPC, a third-party insurance administrator, from the livery car plaintiffs throughout New York City,[FN2] and coerced the livery car plaintiffs to transfer title to their vehicles to defendant "sham corporations" controlled by Figueroa. It is further alleged that defendant RPC "was engaged in ongoing business with . . . Figueroa whereby Figueroa served as a conduit for insurance business and for monies to [RPC] in connection with the livery industry." According to the complaint, Figueroa "secur[ed] . . . certificate[s] of insurance" for these vehicles from RPC, whereupon the sham corporations were named as insureds. In "connection with this scheme," the brokers allegedly obtained a down payment from each livery car plaintiff for each policy of insurance obtained. According to the complaint, the brokers kept part of the down payment, and turned the rest over to RPC in return for certificates of insurance. Because only a portion of the down payments were paid, the insurance policies were cancelled or revoked by RPC for nonpayment of premiums. The livery car plaintiffs, who had paid their monthly premiums to RPC through Figueroa, allegedly learned about the cancellations from other livery car drivers or from police when their vehicles were stopped and then impounded for lack of insurance. The complaint alleges that as a result of the cancellations, the livery car plaintiffs sustained damages from loss of insurance, loss of money paid for insurance, and loss of use of their vehicles "in the livery business." The livery car plaintiffs also allege that RPC failed to send out proper notices of cancellation and that if such notices were sent, they were improperly sent to the sham defendants, rather than the livery car drivers. [*3]

The complaint also alleges that AIG, AIU, Hudson and Lincoln, licensed to conduct insurance business in the state of New York, collaborated with RPC and "provided or underwrote" the coverage for the livery cars and, as a result, "benefitted by the quick cancellations subsequent to receipt of substantial payments," and "knew or should have known that something was awry, but carelessly or recklessly failed to make inquiry or otherwise failed to act responsibly and with due care."

The complaint asserts eight causes of action: "fraud," "conversion," and "fraud on creditors," against Figueroa and defendant brokers Ronald Kucharnik (Kucharnik) and Huberth Jimenez (Jimenez) (first); "fraud," "recklessness," and "gross negligence" against RPC (second); failure, among other things, "to notify the livery car driver [sic] and/or owners upon receipt of cancellation of insurance policies" against the "sham corporations" (third); breach of contract against Figueroa (fourth); breach of fiduciary duty under common law and New York Insurance Law § 2120 against all defendants (fifth); "defamation [and] actual pecuniary loss" against Figueroa on behalf of plaintiff Ellis Estevez (sixth); violation of General Business Law § 349(a) against all defendants (seventh); and violation of " Civil RICO Section 1962" against all defendants (eighth).

RPC and Hudson joined issue generally denying the allegations of the complaint. Lincoln served an answer, and AIG/AIU moved to dismiss the complaint pursuant to CPLR 3211(a)(7) in lieu of answering. Thereafter, RPC and Hudson moved for summary judgment, and Lincoln made a separate motion to dismiss the complaint pursuant to CPLR 3211(a)(7).

Motions of RPC/Hudson, AIG/AIU and Lincoln to Dismiss

RPC, a third-party insurance administrator, and Hudson, an insurance company, move to dismiss all claims insofar as asserted against them on the ground that they complied with the requirements of the New York Automobile Insurance Plan (the NYAIP). They also argue that separate grounds warrant dismissal of the second, fifth, seventh, and eighth causes of action.

As to their former claim, RPC and Hudson assert that the insurance fraud committed here was by the livery car plaintiffs and their apparent accomplices, Figueroa and his alleged "runners," and that the intended victims were RPC, Hudson, Lincoln and AIG/AIU. In this regard, RPC and Hudson point out that plaintiffs admit that they assigned or sold their interests in their vehicles to defendant sham corporations, that the sham corporations were "legal but not beneficial holders of the interests" of the vehicles at issue, and that the sham corporations were the named insureds on the policies. RPC and Hudson also note that the sham corporations were located on Long Island, and purported to be "airport limousine" services, and that by contrast, plaintiffs admit that they were residents of New York City and were licensed by the New York City Taxi & Limosine Commission. RPC and Hudson further point out that pursuant to the NYAIP, insurance rates for areas outside of New York City are much lower than rates inside the City. Thus, they contend that "[w]hether by ignorance or by design, plaintiffs admit that they were part of a scam' to attempt to obtain insurance at much lower premium[s] then [sic] they would have been charged if they [*4]themselves had applied to the [NYAIP] and provided truthful information . . . However, the true victims' here are RPC and the insurers, who were induced by Figueroa, the brokers, and plaintiffs to issue and service policies of insurance that were fraudulently obtained."

The court first finds that compliance by RPC and Husdon with the requirements of the New York Automobile Insurance Plan (the NYAIP) mandates dismissal of the complaint insofar as asserted against them. In this regard, "[p]ursuant to article 53 of the Insurance Law, all insurance companies licensed to write motor vehicle liability insurance in New York State are required to participate in the New York Automobile Insurance Plan" (Premins Co., Inc. v Travelers Indem. Co., 37 AD3d 799, 800 [2007]). "The primary purpose of the NYAIP is to provide for the equitable apportionment among such insurers of applicants for such insurance who are in good faith entitled to but are unable to procure it through ordinary methods'" (id., citing Insurance Law § 5301 [a]). Thus, "New York residents who are eligible for but unable to obtain automobile insurance may submit an application to the Plan" (New York Automobile Insurance Plan v All Purpose Agency & Brokerage, Inc., 1998 WL 695869, *1 [SDNY October 6, 1998]). "The plan then assigns applicants to automobile insurers licensed to do business in the State of New York who, in turn, are required to accept assignments from the Plan" (id.). "All insurers writing automobile insurance in New York State must participate in the NYAIP by providing such insurance" (Premins Co., Inc. v Travelers Indem. Co., 8 Misc 3d 299, 300 [Sup Ct, Kings County 2005], appeal dismissed 37 AD3d 799 [2007]). Further, "[i]t is well established that the Rules of the New York Automobile Insurance Plan govern the rights and liabilities of parties entering into assigned risk contracts'" (Fogarty v Boston Old Colony Ins. Co., 222 AD2d 484, 485 [1995], quoting Matter of Bowley Assocs. Ltd. v State of NY Ins. Dept., 98 AD2d 521, 526-527 [1999], affd 63 NY2d 982 [1984]). In this regard, "it is settled that assigned risk insurance applications and policies cannot be viewed as private, contractual relationships, but are special relationships subject to immediate oversight and supervision by the Superintendent of Insurance'" (Coling Ambulette Serv. v Empire Ins. Co., 262 AD2d 187 [1999], quoting Matter of Bowley Assocs., 98 AD2d at 526-527).

Here, the record, including the affidavit of Ms. Julia Johnson, Vice President of Underwriting for RPC, the verified complaint, and the exhibits annexed to the motion of RPC and Hudson, including the pertinent provisions of the NYAIP, reveals that RPC and Hudson fully complied with the NYAIP, and therefore could not have committed the wrongdoing alleged in the complaint. In this regard, the complaint alleges that defendant Figueroa and the defendant brokers "were involved in a fraudulent scheme wherein they solicited insurance business from livery car driver[s] and/or owners throughout New York City using various individuals or runners' . . . ;" that "defendant [RPC] was engaged in ongoing business with defendant Figueroa whereby Figueroa served as a conduit for insurance business and for monies to [RPC] in connection with the livery industry;" that defendant brokers and defendant Figueroa paid RPC for insurance; and that the sham corporations and RPC failed to notify the livery car plaintiffs of the cancellations of the subject insurance [*5]policies. However, it is undisputed that: 1) the livery car plaintiffs assigned their interests in their vehicles to the defendant sham corporations, and that the defendant sham corporations applied to the NYAIP for coverage; 2) that once the applications on behalf of the sham corporations and premium deposits were received by the NYAIP, insurers, like Hudson and Lincoln, were assigned by the NYAIP to the sham corporations; 3) that RPC, as a third-party administrator, provided underwriting and administration services to Hudson and other insurers after the insurers were assigned a risk under the NYAIP; and 4) that RPC was caused to issue policies to the defendant sham corporations named in the complaint. Thus, it is undisputed that the selection of the insurer and/or the administrator for the insurer was completely within the control of the NYAIP, rather than any insurer or third-party administrator such as RPC, and that the named insureds on the subject policies were the "sham corporations." As such, the record reveals that RPC and Hudson did not have any contact with the livery car plaintiffs. Moreover, in light of the mandatory nature of the assigned risk plan under the NYAIP, RPC could not have been part of any conspiracy with the defendant brokers, as alleged in the complaint.

In addition, while the complaint alleges that the defendant brokers paid RPC for insurance, it was the NYAIP, not RPC, which received the premium down payments from the applications. In this regard, "[a] risk applying for coverage in the Plan must submit the prescribed application form to the Plan in duplicate, accompanied by the full annual premium or the appropriate deposit premium . . . as specified in the payment plans by type of risk" (NYAIP § 11[A][1]) (emphasis added).

Further, with respect to cancellations of the policies, according to the affidavit of Ms. Johnson, RPC issued policies to the defendant sham corporations by virtue of the assignments by the NYAIP to the insurers with which RPC had agreements. The defendant sham corporations were applicants under the NYAIP, not the livery car plaintiffs. Therefore, plaintiffs were not listed as the named insureds on the policies. Under the NYAIP, a policy can be cancelled if the insured fails to pay the entire premium (NYAIP § 18[2][5]). Further, a policy can be cancelled if the insured fails to respond to two written requests for underwriting information (NYAIP § 18[2][9][b]). Thus, according to Ms. Johnson, RPC properly cancelled each of the polices it issued to the sham corporations, because of the failure of the insureds to pay the premium or the failure of the insureds to respond to two written requests for underwriting information, and the cancellations were properly sent to the insureds, as required under the NYAIP. In addition, while the complaint alleges that RPC failed to notify the livery car plaintiffs of the cancellations, the NYAIP only requires notification to the named insureds, here the defendant sham corporations.

In sum, RPC and Hudson have made a prima facie showing that they had no connection with the livery car plaintiffs, were chosen by the NYAIP, and properly cancelled the subject polices pursuant to the provisions of the NYAIP. Further, RPC had no contact with any of the prospective insureds until after those insureds had applied to the NYAIP and the insureds' risk had been assigned by NYAIP to an insurer for which RPC provides [*6]services. In effect, RPC and Hudson merely complied with the provisions of the NYAIP. As they contend, in order to establish that they engaged in a conspiracy with Figureroa and others, plaintiffs would have to have established that RPC and Hudson (and the other insurers) knew that plaintiffs would have been assigned to them by the NYAIP. Such is not the case here. Inasmuch as neither RPC nor Hudson could have been involved in the alleged conspiracy with defendant Figueroa or the defendant brokers, dismissal of all claims insofar as asserted against them is warranted.

In any event, RPC and Hudson argue that the second, fifth, seventh and eighth causes of action insofar as asserted against them must be dismissed as a matter of law. Lincoln and AIG/AIU [FN3] also argue that the fifth, seventh, and eighth causes of action insofar as asserted against them must be dismissed as legally insufficient. The court concurs.

The second cause of action against RPC alleges fraud, gross negligence, and recklessness. RPC and Hudson argue that the cause of action for fraud has not been pleaded with particularity and that plaintiffs have not and cannot allege that RPC represented any facts to them. As to the causes of action for gross negligence and recklessness, RPC asserts that it did not owe plaintiffs a duty. In opposition, counsel for the livery car plaintiffs argue that under the circumstances, there was "a clear pattern of fraud" present, namely "dozens if not hundreds of insurance applications brokered by Luis Figureroa . . . resulting in policies which were all issued and cancelled by [RPC]," and that therefore "plaintiffs need not specify allegations of fraud against defendants [RPC] and Hudson [] beyond those enumerated in the complaint."

"The essential elements of a cause of action for fraud are representation of a material existing fact, falsity, scienter, deception and injury'" (New York Univ. v Cont'l Ins. Co., 87 NY2d 308, 318 [1995], quoting Channel Master Corp. v Aluminium Ltd. Sales Corp., 4 NY2d 403, 407 [1958]). Allegations of fraud must be pleaded with particularity in order to inform the defendant of the circumstances constituting the wrong (Goldfine v DeEsso, 309 AD2d 895, 897 [2003]; CPLR 3016). The livery car plaintiffs' unelaborated claim that the complaint is sufficiently particularlized is rejected. In this regard, the complaint does not allege that RPC made any representations of fact to them, but merely asserts that Figueroa in some way acted in concert with RPC. In any event, it is undisputed that RPC did not have any contact with Figueroa because the NYAIP alone assigned the insurers to the defendant sham corporations. As such, the livery car plaintiffs cannot establish any elements of fraud, and therefore this cause of action insofar as asserted against RPC and Hudson is dismissed.

The causes of action for gross negligence and recklessness asserted against RPC must also be dismissed. An essential element of recklessness and gross negligence is that the defendant owed a duty to the plaintiff (Martian Entertainment, LLC v Harris, 12 Misc 3d [*7]1190A, *6 [Sup Ct, New York County 2006]). Here, the record reveals that there is no relationship between the livery car plaintiffs and either RPC (or Hudson) giving rise to a duty. In this regard, it is undisputed that none of the livery car plaintiffs were named insureds on any of the polices of insurance serviced by RPC. Notably, the livery car plaintiffs do not allege that they were the named insureds on the insurance policies at issue and in fact admit, in paragraph 92 [b] of the complaint, that the insureds on the policies were the sham corporations. Moreover, in his affirmation in opposition, counsel for the livery car plaintiffs does not address the legal sufficiency of the claims for recklessness and gross negligence. In any event, counsel annexes sworn identical affidavits of some of the livery car plaintiffs, which do not demonstrate that either RPC or Hudson owed them a legal duty or made any fraudulent representations to them. In this regard, the livery car plaintiffs concede that Mr. Figueroa and his employees or agents told them how much money was needed for coverage and which documents to provide; that they relied upon Mr. Figueroa because they knew he was in the livery car business; that Mr. Figueroa asked them to sign various papers and that they provided documents to him, including vehicle registration and documents of title; and that they "later found that during the process of applying for insurance" that title to their vehicles was transferred from them to a corporation, and that they were not aware that this was being done because they did not read English well, and relied upon Mr. Figueroa and his associates (emphasis added). As such, these affidavits confirm that the livery car plaintiffs relied solely upon Figueroa; that neither RPC nor Hudson were aware or could have been aware of the existence of the livery car plaintiffs since it was the sham corporations which were the named insureds on the subject policies; and that the livery car plaintiffs had no right to reasonably rely upon the representations made to them regarding the transfer of the vehicles to the sham corporations, inasmuch as the named insureds on the insurance cards were the sham corporations and not the plaintiffs. Moreover, it appears that the livery car plaintiffs also knew that their vehicles were being transferred to the sham corporations during the insurance application process.

Counsel for the livery car plaintiffs raises additional arguments in his affirmation in opposition to this branch of RPC/Hudson's motion. On the whole, counsel's arguments are unsupported by any substantive, reasoned legal analysis. Moreover, counsel fails to address the arguments made by RPC/Hudson in support of their motion to dismiss, misstates facts, and seeks to impose liability upon RPC, in large part, upon vague references to unspecified "suspicious" behavior to support his arguments. In this regard, counsel first argues, in substance, that because the livery car plaintiffs indicate in their affidavits that they were aware that they were dealing with RPC, under principles of agency, RPC was the "principle" liable for the foreseeable tortious conduct of its "agent" Figueroa, even assuming RPC was "otherwise innocent, which is doubtful."[FN4] In this regard, plaintiffs state in their affidavits that [*8]they were aware that the insurance was "provided through [RPC]," that there were RPC business cards in Mr. Figueroa's office, and that RPC is known in the livery business.This argument is rejected. As noted above, the complaint fails to allege, nor have plaintiffs provided any evidence that RPC had any contact with Figueroa. Further, the livery car plaintiffs' statements fail to raise a question of fact as to whether RPC had any involvement, let alone conspired, with Mr. Figueroa and the defendant brokers. Counsel for the livery car plaintiffs also contends that even assuming RPC was innocent of fraudulent collusion or conspiracy (with Figueroa and others), RPC's knowledge of similar fraudulent schemes, its involvement in preventing insurance fraud, the voluminous number of applications from Figueroa - which resulted in the issuance of policies and subsequent cancellations by RPC - put RPC on notice and imposed a duty upon RPC "to inquire" into the "suspect patterns of application and cancellation [sic]," and that failure to do so constituted gross negligence. However, as noted above, the record reveals that there is no relationship between the livery car plaintiffs and either RPC (or Hudson) giving rise to a duty. As set forth above, it is undisputed that none of the livery car plaintiffs were named insureds. Counsel also argues that since RPC either benefitted from the fraud or enabled it, it must be held liable for plaintiffs' losses. However, counsel fails to explain how RPC enabled or benefitted from the applications of the sham corporations. Finally, in a further effort to impose liability upon RPC, counsel for the livery car plaintiffs contends that plaintiffs were the "beneficial owners of the insured vehicles" "by operation of equitable principles of constructive trust." This claim is also rejected. Even assuming plaintiffs were the implicit beneficiaries of the insurance polices, counsel has failed to demonstrate the elements of a constructive trust such that it would be applicable in this case (Iwanow v Iwanow, 39 AD3d 476, 476-477 [2007]). In this regard, there is no evidence that RPC made any promises to the livery car plaintiffs or that RPC or Hudson had a confidential or fiduciary relationship with them. As noted above, RPC did not have any contact with any prospective insured until after that insured had applied to the NYAIP and that insured's risk had been assigned by the NYAIP to an insurer for which RPC provides services. In addition, there is no evidence that a transfer in reliance on such relationship occurred, or that RPC or Hudson were unjustly enriched. Based upon the foregoing, the causes of action for fraud, gross negligence and recklessness against RPC and Hudson must be dismissed.[FN5] [*9]

RPC and Hudson also argue that the fifth cause of action for breach of statutory and common law fiduciary duty must also be dismissed as a matter of law. AIG and AIU argue that this cause of action fails to state a claim, and Lincoln adopts the argument of AIG and AIU.[FN6]

New York Insurance Law § 2120, entitled "Fiduciary Capacity of Insurance Agents, Insurance Brokers and Reinsurance Intermediaries," requires insurance agents, insurance brokers, and reinsurance intermediaries to be "responsible in a fiduciary capacity for all funds received or collected" in such capacity. Here, it is undisputed that RPC, Hudson, AIG, AIU, and Lincoln are not insurance agents, insurance brokers, or reinsurance intermediaries. In addition, none of these defendants received any premiums directly from the livery car plaintiffs. Instead, payment of the deposit premiums were paid to the NYAIP. Moreover, based upon Insurance Law § 2120, the livery car plaintiffs' broad assertion that this statute imposes fiduciary duties "on those in the insurance industry" is incorrect. In opposition to this branch of RPC/Hudson's motion, counsel for the livery car plaintiffs fails to address the legal sufficiency of these claims in any substantive manner and in effect concedes that RPC and Hudson are not brokers. Counsel's only argument is that RPC and Hudson nevertheless acted as brokers to bring them within the statute. However, this claim is unsupported by any authority and is therefore rejected.

As for the common-law claim, the complaint alleges that RPC and the defendant insurers "breached their fiduciary duties by accepting payment of insurance premiums and other monies . . . and thereupon canceling said policies . . . without notifying plaintiffs and recklessly, carelessly or otherwise failing to investigate the dubious circumstances of such [*10]cancellation or otherwis[]e acting to safeguard the premium payments . . . advanced to their representative or agent, defendant Figueroa and other brokers or agents working in collusion with him or at his behest." However, the complaint also alleges, in contradiction to the above allegation, that defendant Figueroa "abscond[ed] with the monies entrusted to him by [the livery car plaintiffs]." "To state a claim for breach of fiduciary duty, plaintiff must first establish that a fiduciary relationship existed between the parties" (Edelman v O'Toole-Ewald Art Assocs., 2005 Lexis 3359, *13-14 [Sup Ct, New York County May 24, 2005]). " A fiduciary relationship only arises when one has reposed trust and confidence in the integrity and fidelity of another who thereby gains influence or assumes control and responsibility'" (Mars v Diocese of Rochester, 196 Misc 2d 349, 352 [Sup Ct, Monroe County 2003], affd 6 AD3d 1120 [2004], lv denied 3 NY3d 608 [2004], quoting Laikin v Vaid, 2001 NY Slip Op 50078[U], *3; see also Board of Managers of Fairways at North Hills Condominium v Fairway at N. Hills, 193 AD2d 322,325 [1993]). "Normally, insurance companies do not owe a fiduciary duty to their insureds, absent a showing of some special relationship" (Edelman v O'Toole-Ewald Art Assoc., Inc., 28 AD3d 250, 251 [2006], lv denied 7 NY3d 706 [2006]). In this regard, "a fiduciary duty may arise if the [f]acts of the particular relationship between the parties create an exceptional situation in which an insurance agent, through his or her conduct or by express or implied contract, assumes or acquires duties in addition to those fixed at common law" (Edelman, 2005 Lexis 3359, *13-14). Inasmuch as RPC is a third-party insurance administrator, and Hudson, Lincoln and, for present purposes AIG/AIU, are insurance companies, they do not owe plaintiffs a fiduciary duty as a matter of law. In opposition, plaintiffs have failed to demonstrate that a special relationship existed between them or any of the moving defendants. Moreover, as noted above, it is undisputed that plaintiffs are not insureds under the subject policies. In addition, to the extent the livery car plaintiffs argue that Figueroa or the defendant brokers were agents of the moving defendants, and that as a consequence of this relationship, the moving defendants owe plaintiffs a common law fiduciary duty, said argument is rejected. Counsel has failed to submit any evidence supporting his claim that Figueroa was an agent of RPC, Hudson (or any of the other moving defendants). In any event, as noted above, RPC, Hudson and the other moving defendants were selected by the NYAIP, not by the insureds or the defendant brokers. Further, as noted, an insurance broker is an agent of its insured, not of insurance companies (Paul Developers, LLC v Maryland Cas. Ins. Co., 28 AD3d 443, 445 [2006]). In addition, plaintiffs concede that the insureds on the subject policies were defendant sham corporations, and do not allege that they applied to the NYAIP for insurance coverage. As noted above, the applications were made to the NYAIP on behalf of the sham corporations, not to any of the moving defendants. Thus, the alleged failure of the moving defendants to cancel policies without notifying plaintiffs, as alleged in the complaint, does not set forth a valid cause of action since plaintiffs were not the named insureds on the policies. Further, since plaintiffs were not named insureds, they could not have paid any of the moving defendants any premiums, and therefore allegations that the moving defendants [*11]"accepted" premiums from plaintiffs is also without merit. Based upon the foregoing, this cause of action fails to set forth a viable claim against any of the moving defendants, and is therefore dismissed as to RPC, Hudson, AIG, AIU and Lincoln. It should be noted that counsel for the livery car plaintiffs does not address this cause of action in plaintiffs' opposition to the motion of AIG/AIU to dismiss for legal insufficiency and in fact does not address the CPLR 3211(a)(7) branch of that motion at all. Further, counsel does not address the sufficiency of this cause of action in opposition to Lincoln's motion to dismiss.RPC and Hudson also argue that the seventh cause of action for violation of General Business Law (GBL) § 349 must be dismissed insofar as asserted against them on the ground that they did not perform any misleading acts. AIG, AIU, and Lincoln make the same argument based on legal sufficiency grounds, but also contend that this cause of action is not viable because the alleged wrongdoing was not consumer-oriented, as required by GBL §349(a).

"General Business Law § 349 prohibits deceptive business practices" (Andre Strishak & Assocs., P.C. v Hewlett Packard Co., 300 AD2d 608, 609 [2002]). "The elements of a cause of action for deceptive business practices under General Business Law § 349 are a consumer-oriented act or practice that is misleading in a material way, and that causes injury to the plaintiff" (Citipostal, Inc. v Unistar Leasing, 283 AD2d 916, 918 [2001]; Andre Strishak & Assocs., P.C., 300 AD2d at 609). "In determining whether a representation or omission is a deceptive act, the test is whether such act is likely to mislead a reasonable consumer acting reasonably under the circumstances'" (Andre Strishak & Assocs. P.C., 300 AD2d at 609, quoting Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 26 [1995]).

Conclusory allegations of a conspiracy, namely that RPC and the defendant insurance companies "operat[ed] in association, in collusion with, or with reckless disregard for the actions of defendant Figueroa, from whose actions they were receiving a benefit," and by "directly, vicariously, or by condoning the deceptive acts and omissions of defendant Figueroa by their recklessness or other failures or omissions" cannot sustain a cause of action for deceptive trade practices (see Soule v Norton, 299 AD2d 827, 829 [2002]). Moreover, plaintiffs do not allege that the moving defendants engaged in any deceptive acts. In fact, the complaint alleges that it was Figueroa that engaged in deceptive actions which were consumer-oriented, against the public interest, and which violated GBL § 349. Further, deceptive acts by Figueroa cannot be imputed to any of the moving defendants since Figueroa and the defendant brokers were not agents of any of the moving defendants. In addition, the livery car plaintiffs do not dispute in their opposition to RPC/Hudson's motion that there was no direct contact between RPC and/or Hudson and them in connection with the placement of the instant insurance.

In opposition to RPC/Hudson's motion, counsel for the livery car plaintiffs argues that the improper cancellation of the insurance policies constituted the deceptive act sufficient to support the GBL § 349(a) cause of action. This claim is rejected. The record reveals that the policies were properly cancelled, in accordance with the NYAIP rules, because the [*12]proper premium was not paid and/or the named insureds failed to supply the proper information when requested. Further, as counsel for RPC and Hudson argue, even had they wanted to provide notice of cancellation to someone other than the named insureds, they could not have done so, since the livery car plaintiffs, due to their own fraudulent or negligent conduct in procuring insurance through the sham corporations, were not named as insureds or as drivers on the subject policies, and neither their identity nor their whereabouts were known to RPC and/or Hudson. AIG/AIU argue similarly, contending that the only allegation in the complaint of a deceptive act is that they acquiesced in the cancellation of plaintiffs' insurance policies for non-payment of premiums and failed to realize that the livery car plaintiffs had been the victims of a fraud by others that had caused the premiums to go unpaid and notices of cancellation to be sent to the "wrong" parties. The court concurs that this conduct does not constitute "deceptive acts" within the meaning of GBL § 349(a) (see Varela v Investors Ins. Holding Corp., 81 NY2d 958, 960-961 [1993]).

Counsel for the livery car plaintiffs also contends, in opposition to this branch of Lincoln's motion to dismiss, that the deceptive act by Lincoln was "the issuance of insurance policies with the implicit representation that such would remain in effect as long as payment of premiums were properly remitted to brokers." This argument is also rejected. As noted repeatedly, the moving defendants played no role in the procurement of the policies and issued the policies in compliance with the procedures set forth by the NYAIP. Moreover, to the extent counsel argues that the polices were improperly cancelled, this argument has already been rejected.

AIG/AIU and Lincoln also argue that this cause of action is not viable because the alleged wrongdoing was not consumer-oriented, as required by GBL §349(a). In opposition to this branch of Lincoln's motion, counsel for the livery car plaintiffs contends that "[t]he court may take judicial notice of the public record that Lincoln . . . is an insurance company which provides insurance products including high risk automobile insurance herein, as well as other automobile insurance products to the public consumers . . . [thus] it is absurd for it to deny that [Lincoln's] business is consumer oriented for purposes of GBL [§] 349(a)." This argument is unsupported by any legal authority. In any event, it is rejected. In this regard, the complaint alleges that each of the plaintiffs were "conducting business as a livery car driver and/or owner duly licensed by the New York City Taxi and Limousine Commission;" that plaintiffs were "required to take out liability insurance on their livery car vehicles in order to legally conduct business;" and that they "operated their livery businesses" under the authority of the New York Taxi and Limousine Commission. The acts complained of are not consumer-oriented within the meaning of GBL § 349 since they are limited to business rather than consumer insurance polices, and the conduct complained of cannot carry over to consumer transactions (Cruz, 263 AD2d at 289). Further, each plaintiff is conducting business as a livery car driver or owner, and his dispute concerns the insurance required by law to conduct business, as well as the impact of the cancellation of the insurance on their [*13]livery cab businesses, rather than consumers at large. In view of the foregoing, this cause of action is dismissed as to all the moving defendants.

RPC and Hudson also argue that the eighth cause of action asserted by plaintiffs against all defendants for violation of the civil Racketeer Influenced and Corrupt Organizations Act (RICO), 18 USC § 1962, must be dismissed because it is improperly pleaded and is factually unsupportable. AIG/AIU argues, in substance, that this cause of action must be dismissed as it fails to allege that they participated in any fraudulent conduct or knew about the conduct when it occurred. Lincoln adopts the argument made by AIG/AIU.

"Although essentially a criminal statute, RICO provides for civil penalties by private parties who have been injured by reason of a RICO violation" (Katzman v Victoria's Secret Catalogue, 167 FRD 649, 654-655 [D N Y 1996][internal quotations and citation omitted]). "In particular, the statute makes it unlawful for any person to (a) use money derived from a pattern of racketeering activity to invest in an enterprise, (b) acquire control of an enterprise through a pattern of racketeering activity, (c) conduct or participate in the affairs of an enterprise through a pattern of racketeering activity, or (d) conspire to do any of those things" (id., citing 18 USC §§ 1962[a]-[d]; see also Simpson Electric Corp. v Leucadia, Inc., 72 NY2d 450, 453 [1988]). "Under 18 USC § 1961 (5), a pattern of racketeering activity' requires at least the commission of two racketeering activities, and section 1961 (1) enumerates the different predicate offenses which constitute racketeering activity" including "mail fraud, wire fraud and numerous Federal and State law felonies" (Lichtenstein v Polizzotto, 152 Misc 2d 241, 243 [Sup Ct, New York County 1991]). "In order to state a claim under RICO, it must be alleged that [d]efendants committed one of the predicate acts specifically listed in 18 U.S.C. § 1961(1)" (Katzman, 167 FRD at 655). "The elements that must be pleaded to state a civil RICO claim are (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity'" (Podraza v Carriero, 212 AD2d 331, 335 [1995], appeal dismissed without opinion 86 NY2d 885 [1995], quoting Sedima v Imrex Co., 473 US 479, 496 [1985]). "Because the mere assertion of a RICO claim . . . has an almost inevitable stigmatizing effect on those named as defendants, . . . courts should strive to flush out frivolous RICO allegations at an early stage of the litigation'" (Katzman, 167 FRD at 655, quoting Figueroa Ruiz v Alegria, 896 F 2d 645, 650 [1st Cir 1990]).

The complaint alleges that "Section 1962(d) of the USC makes it unlawful for any person to violate any of the provisions of subsections a, b, or c' of that section." The complaint further alleges that defendants conspired to violate 18 USC §1962 [c] "to conduct and participate directly and indirectly in the conduct of affairs of a fraudulent insurance enterprise through a pattern of racketeering activity," which consisted of, among other things, a " scheme to defraud the livery owners and drivers by fraudulently inducing them to procure insurance through [RPC] with the plan to abortively cancel the insurance . . . and abscond with the premiums . . . paid by the livery owners and drivers." The complaint then alleges that such pattern of conduct included: 1) the solicitation of business from the livery car [*14]plaintiffs, 2) inducing the livery car plaintiffs to transfer title to their vehicles to defendants and/or the sham corporations, 3) issuing suspect certificates of insurance and 4) abortive cancellation of insurance policies without notice to the livery car plaintiffs. The complaint also alleges that these actions occurred within the last ten years, included at least two acts (enumerated above) which were actionable as a pattern of fraud and racketeering activity, and that communication between the defendants included means of interstate commerce, including phone, telex, facsimile, mail, and internet.

Thus, the complaint purports to allege a violation of 1962 ( c ) and (d). "Subsection 1962 ( c) prohibits any person employed by or associated with any enterprise [engaged in, or the activities of which affect, interstate or foreign commerce] . . . to conduct or participate, directly or indirectly, in the conduct of the enterprise's affairs through a pattern of racketeering activity'" (Katzman, 167 FRD at 657, quoting 18 USC § 1962[c]). "Subsection 1962(d) makes it unlawful for any person to conspire to violate any of the provisions of subsection (a), (b) or ( c ) of this section'" (id., quoting 18 USC § 1962[d]).

The complaint fails to state a claim under RICO. As an initial matter, plaintiffs fail to allege that any of the moving defendants committed one of the predicate acts specifically listed in 18 USC § 1961(1). Further, plaintiffs' conclusory allegations, noted above, do not sufficiently allege that any of the moving defendants were engaged in activities that affect interstate or foreign commerce (Cole v Bennett Funding Group, Inc., 159 AD2d 965, 965 [1990]). In any event, it is undisputed that all of the parties to this action are located in New York, and that all insurance policies issued to the sham corporations were issued through the NYAIP, which only operates in New York State.

With respect to the livery car plaintiffs' section 1962( c ) claim, plaintiffs must show: 1) conduct, 2) of an enterprise, 3) through a pattern, 4) of racketeering activity. Moreover, "the elements of section 1962 ( c ) must be established as to each individual defendant" (United States Fire Ins. Co. v United Limousine Serv., 303 F Supp 2d 432, 451 [SDNY 2004]). Here, the complaint also fails to particularize the elements under this section as to each defendant (id.). Further, plaintiffs failed to properly plead the "conduct" element of this section, by pleading each defendant's participation in the "operation and management" of the enterprise (Crab House of Douglaston, Inc. v Newsday, Inc., 418 F Supp 2d 193, 206 [EDNY 2006], quoting LeSavoy v Lane, 304 F Supp 2d 520, 534 [SDNY 2004]). In this regard, as AIU, AIG and Lincoln point out, the only potentially viable RICO claim asserted against them in the complaint is that they were involved in cancelling the insurance policies without notice to plaintiffs and "benefitted by the quick cancellations subsequent to receipt of substantial payments, and . . . knew or should have known that something was awry, but carelessly or recklessly failed to make inquiry or otherwise failed to act responsibly and with due care." However, these allegations fail to allege that the defendant insurers participated in any fraudulent conduct or knew about the conduct when it occurred. Equally important, RPC and Hudson correctly argue that plaintiffs cannot prove a violation of this section. As they have demonstrated, inasmuch as the applications for the sham corporations were made [*15]directly to NYAIP, which assigned the defendant sham corporations to the moving defendants, there was no "conduct" carried out by any "enterprise" involving them or any of the moving defendants, which is also fatal to plaintiffs' 1962 (c) claim. In this regard, an "enterprise" "includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity" (18 USC 1961[4]). "An enterprise must share a common purpose among its members" (Crab House of Douglaston, Inc., 418 F Supp2d at 203). While plaintiffs allege that the moving defendants conspired with other defendants, it is uncontested that under the NYAIP no such conspiracy existed since the subject insurance applications were made directly to the NYAIP. Thus, plaintiffs' claims that defendants induced plaintiffs to procure insurance through RPC is without merit.

As to Section 1962(d), plaintiffs must show a violation of § 1962 (a), (b), or (c). Thus, "a claim under section 1962(d) alleging a conspiracy to violate the other subsections fails as a matter of law if the substantive claims based on the other subsections are defective" (Crab House of Douglaston, Inc., 418 F Supp 2d at 212). Here, plaintiffs' failed to adequately plead facts that would satisfy the pleading requirements of § 1962 (c), which is fatal to any claim they may assert arising under § 1962(d) (Katzman, 167 FRD at 658; Crab House of Douglaston, Inc., 418 F Supp 2d at 212). Moreover, "[t]o state a subsection (d) claim for conspiracy to violate the RICO statute, the [p]laintiff must plead facts showing the existence of an enterprise; that defendant was associated with or employed by the enterprise; and that the defendant objectively manifested an agreement to participate in the affairs of the enterprise" (Pennino v Selig, 258 F Supp 2d 914, 923 [WD Ark. 2003] [internal quotations and citations omitted]). "Vague, conclusory allegations standing alone are insufficient" (Trautz v Weisman, 819 F Supp 282, 289 [SDNY 1993]). As noted above, the livery car plaintiffs fail to allege that any of the moving defendants "objectively manifested an agreement to participate" in a conspiracy with Figueroa and the broker defendants. "In order to allege a conspiracy under § 1962(d), the plaintiff must assert that each defendant by words or actions, manifested an agreement to commit two predicate acts in furtherance of the common purpose of a RICO enterprise" (United States Fire Ins. Co., 303 F Supp 2d at 453-454) (internal quotations and citations omitted). "Conclusory allegations [as in the livery car plaintiffs' complaint] that all of the defendants conspired among themselves to further the scheme to defraud and knowingly and willingly participated in the conspiracy are insufficient" (id.) (internal citations and quotations omitted). Equally important, based upon the fact that the applications at issue were made directly to the NYAIP, which issued the policies to the sham corporations, there could not have been any conspiracy between Figueroa and the moving defendants. Finally, as noted above, as to AIU, AIG, and Lincoln, this cause of action fails to allege that these defendant insurers " knew about and agreed to facilitate the scheme'" (Baisch v Gallina, 346 F3d 366, 377 [2d Cir 2003], quoting Salinas v United States, 522 US 52, 66 [1997]), a requirement for a viable RICO conspiracy claim. Finally, inasmuch as the defendant insurers' involvement is limited to conduct which [*16]allegedly occurred after Figueroa defrauded plaintiffs, there similarly could not have been any conspiracy with them and Figueroa. As such, this cause of action is dismissed as to all moving defendants.

In opposition to this branch of the motion, counsel for plaintiffs merely states that he disagrees that the complaint fails to state a cause of action under RICO and that it is "sufficient as it stands." Nevertheless, he seeks leave to amend the complaint upon completion of further discovery. "A motion for summary judgment may be opposed with the claim that facts essential to justify opposition may exist but that such material facts are within the exclusive knowledge and possession of the moving party" (Pank v Village of Canajoharie, 275 AD2d 508, 509 [2000], citing CPLR 3212[f]). "However, the opposing party must make an evidentiary showing supporting this conclusion, mere speculation or conjecture being insufficient" (id.). Here, counsel for plaintiffs has given "no indication as to what essential' facts [he] believes exist that would justify a denial" of RPC and Hudson's motion to dismiss this cause of action (Billy v Consolidated Machine Tool Corp., 51 NY2d 152, 163-164 [1980]). As noted, to prove a conspiracy, counsel relies in large part upon vague and speculative allegations. Moreover, RPC and Hudson have demonstrated that they were not involved in any type of conspiracy with Figueroa or the defendant brokers. Notably, in their opposition, the livery car plaintiffs annex insurance certificates issued to the sham corporations, however they do not annex any certificates issued to plaintiffs which would establish a connection to them and RPC or Hudson. As RPC asserts, any such documents would be in the possession of the plaintiffs, for which no discovery is warranted.In the utter absence of any showing by plaintiffs as to what essential facts exist which would justify denial of this branch of the motion to dismiss, plaintiffs' request for additional discovery with respect to this cause of action is denied.[FN7]

Plaintiffs do not dispute in their opposition that but for naming Hudson in the caption and referring to it as an insurer, the complaint is devoid of any specific allegations as against Hudson, in violation of CPLR 3013 (see Trans-Continental Credit & Collection Corp. v [*17]Foti, 270 AD2d 250, 251 [2000]). Thus, the complaint insofar as asserted against Hudson is dismissed.

Further, the request for sanctions against the livery car plaintiffs by RPC and Hudson is denied.

Motion of AIG/AIU to Dismiss on Grounds They are the Wrong Parties

AIG (American International Group, Inc.) and AIU (American International Underwriter's Corp.) also move to dismiss on the grounds that the livery car plaintiffs have sued them in error. In this regard, movants annex the affidavit of Stephen M. Dixon, Deputy General Counsel at AIG, who states that AIG is a holding company, not a separate insurance company, and that the name "American International Group" sometimes referred to as "AIG," is used colloquially throughout the insurance industry to describe companies whose stock is owned directly or indirectly by "American International Group." Mr. Dixon also states that AIU is not an insurance company, a corporation or any other form of legal entity. Thus, movants argue that neither of them could have, or did, write any of the insurance polices at issue in this lawsuit, as alleged in the complaint, since neither is an insurance company and AIU is not a legal entity.

In opposition to this branch of the motion, counsel for plaintiffs argues that the New York State Department of Corporations website, a corporate locator, indicates that "American International Group" and "American International Underwriters Inc." are active corporations; that a prior action was filed by "AIU Insurance Company" under Index No. 603159/05; that "American International Underwriters Corporation" holds itself out as a "Member Company of American International Group, Inc." on the website of "American International Underwriters" and that it is therefore irrelevant whether either AIG or AIU are insurance companies;" that on that website "American International Underwriters" states that it offers auto and homeowners coverage and gives "ask@aig.com" as an email address for obtaining further auto insurance information; and that a certificate of insurance for the vehicle owned by plaintiff Peralta states that it was from "AIU Insurance Co." Thus, counsel argues that the actions of AIU can be deemed actions of AIG under common law agency principles. Counsel also states that further discovery is necessary in order to clarify the nature of the association between "the two entities," presumably AIG and AIU.

AIG and AIU have established that they were sued by plaintiffs in error. In this regard, although counsel for plaintiffs argues that American International Underwriters Corporation holds itself out as a "Member Company of American International Group, Inc." on the website to which counsel refers, the only reference to AIU on that website is "American International Underwriters," not American International Underwriters Corporation, as stated by counsel. Thus, AIG and AIU correctly note that the website does not identify "American International Underwriters" as a corporate entity, and that it does not indicate that this entity is the same as American International Underwriters Corporation, or that it is a proper defendant here. In any event, plaintiffs site no authority for the proposition that the statements on the website that "American International Underwriters" is "a Member [*18]of American International Group, Inc." means that the actions of the former "can be deemed the actions of" the latter "under common law agency principles." Further, the exhibits upon which counsel relies (the action under Index No. 603159/05 and the certificate of insurance), both contain the name "AIU Insurance Company," not "American International Underwriters Corporation." Notably, AIG and AIU annex the company directory kept by the New York State Department of Insurance, which regulates insurance companies, which has no record for American International Group, Inc. or American International Underwriters Corporation. Moreover, this website indicates that AIU Insurance Company, (not the AIU named here) is an insurance company, which comports which the evidence submitted by counsel for plaintiffs (the insurance certificate and the action commenced by AIU Insurance Company), as well as the certificates of insurance submitted by RPC and Hudson. In addition, AIG and AIU annex a page from the New York State Department of State Division of Corporations, which does not regulate insurers, which shows that AIG is a "foreign business corporation," and shows that AIU is a "domestic business corporation." As AIG and AIU point out, plaintiffs have likely confused "American International Underwriters" and "American International Underwriters Corporation" with a separate entity with a similar name.

In sum, the record reveals that neither AIG nor AIU could have written the subject insurance policies since defendants have demonstrated that they are not insurance companies. Thus, the complaint as against AIG and AIU is dismissed for failure to state a cause of action against them as they are not proper parties to this action (CPLR 3211[a][7]; see Spiegler v New York, 99 AD2d 958, 959 [1984]). Even assuming AIG and AIU are properly named defendants, as noted above, the complaint, insofar as asserted against them, is dismissed.

Finally, Lincoln moves, in the alternative, for an order dismissing the purported class action because the livery car plaintiffs failed to move for certification and failed to meet the prerequisites for obtaining certification. RPC and Hudson state in a footnote that plaintiffs did not make a motion pursuant to CPLR 902 to certify the alleged "class" of plaintiffs within 60 days after the time for responsive pleadings had expired, and that therefore, this action is not a class action pursuant to CPLR 902. The moving defendants correctly assert that plaintiff has failed to seek class certification. However, as noted above, counsel for plaintiff concedes that plaintiffs have not elected to do so. Thus, this action is not a "class action."

In summary, the motions of RPC/Hudson, AIG/AIU, and Lincoln to dismiss the complaint are granted.

The foregoing constitutes the decision, order and judgment of the court.

E N T E R

J. S. C. Footnotes

Footnote 1: The livery car plaintiffs do not dispute that they failed to make a motion pursuant to CPLR 902 to certify the alleged "class" of plaintiffs within 60 days after the time for responsive pleadings had expired. In fact, in opposition to Lincoln's motion to dismiss, counsel for the livery car plaintiffs states that plaintiffs have elected not to seek class certification.

Footnote 2: According to the complaint, all but one of the livery car plaintiffs claims to have been "conducting business as a livery car driver and/or owner duly licensed by the New York City Taxi and Limousine Commission." The other plaintiff, Ellis Estevez, claims she was conducting business as a licensed insurance agent and broker, and makes a claim against Figueroa only for defamation and actual pecuniary loss.

Footnote 3: AIG and AIU also argue, as a threshold matter, that they were sued in error. This argument will be addressed below.

Footnote 4: Counsel for the livery car plaintiffs makes a similar argument in opposition to the motion of Lincoln, namely that Figueroa, "acting implicitly on behalf of [RPC], was acting for the benefit of defendants insurance companies, including Lincoln . . . whose agent was [RPC]." To the extent counsel is arguing that Figueroa was the agent of Lincoln, it is rejected for the same reason this court has found that Figueroa cannot be an agent of RPC, as indicated here, or of any of the other moving defendants, as indicated below.

Footnote 5: A majority of plaintiffs' opposition to Lincoln's motion to dismiss addresses the fraud cause of action. However, the second cause of action for fraud is only asserted against RPC.

Footnote 6: It should be noted that Lincoln made the instant motion after RPC/Hudson and AIG/AIU made their motions. Lincoln adopts the arguments of AIG/AIU. In opposition to Lincoln's motion, counsel for the livery car plaintiffs states that plaintiffs "incorporate by reference every argument" in their affirmation in opposition to the motions brought by AIG/AIU and RPC in opposition to Lincoln's motion. Counsel for plaintiffs also requests that the court incorporate by reference all arguments made in opposition to Lincoln's motion to the motions made by AIG/AIU and RPC/Hudson. Ordinarily, for the ease of the court, the parties involved and the efficient administration of justice, the court would not permit plaintiffs to incorporate the arguments they made against RPC and AIG/AIU in their opposition to Lincoln's motion. Notably, Lincoln was not a party to that prior motion practice. Moreover, in the interest of judicial economy, parties should be limited to filing opposition within the parameters of the motion made. However, inasmuch as Lincoln was served with plaintiffs' affirmation in opposition to RPC/Hudson and AIG/AIU's motions, the court will permit the arguments made by plaintiffs against RPC/Hudson to be made against Lincoln. However, plaintiffs' affirmation in opposition to Lincoln's motion will not be considered in opposition to the motions of AIG/AIU and RPC/Hudson to the extent plaintiffs' arguments differ from those made in their original opposition to the motions of AIG/AIU and RPC/Hudson because such would constitute an authorized additional submission by plaintiffs to which AIG/AIU and RPC/Hudson have had no opportunity to respond.

Footnote 7: In opposition to Lincoln's motion to dismiss, counsel for the livery car plaintiffs makes a related argument, namely he seeks "deferral of decision on this motion pending completion of deposition and discovery" because such would not prejudice defendants and it is warranted since defendants enabled the purported fraud. This claim is rejected. Again, plaintiffs have failed to show what facts exist which would justify denial of Lincoln's motion. Moreover, counsel's argument that the moving defendants enabled the purported fraud is unsupported and is rejected for the reasons it was rejected as to RPC and Hudson. Similarly, counsel's argument, also made in opposition to Lincoln's motion, that discovery is required "to ascertain what the defendant insurance companies knew and communications occurred between defendant insurance companies, [RPC] and Luis Figueroa [sic]" is also rejected. In light of the record before the court, and counsel's failure to make any showing to justify this request, this "application" for discovery is also denied.