Barry's Auto Body of NY, LLC v. Allstate Fire & Cas. Ins. Co.

• Decision Date: 20 January 2021
• Docket Number: 2018–02876,2018–09122,Index No. 152162/17
• Citation: 190 A.D.3d 807,140 N.Y.S.3d 246
• Parties: BARRY'S AUTO BODY OF NY, LLC, appellant, v. ALLSTATE FIRE & CASUALTY INSURANCE COMPANY, et al., respondents.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 807

140 N.Y.S.3d 246

BARRY'S AUTO BODY OF NY, LLC, appellant,

v.ALLSTATE FIRE & CASUALTY INSURANCE COMPANY, et al., respondents.

2018–02876

2018–09122

Index No. 152162/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 12, 2020

January 20, 2021

Howard M. File, Esq., P.C., Staten Island, N.Y. (Andrew A. Rafter of counsel), for appellant.

Rivkin Radler, LLP, Uniondale, N.Y. (Cheryl F. Korman, Stuart M. Bodoff, and Michael P. Welch of counsel), for respondents.

WILLIAM F. MASTRO, A.P.J., HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and violations of General Business Law § 349, the plaintiff appeals from (1) an order of the Supreme Court, Richmond County (Alan C. Marin, J.), dated January 18, 2018, and (2) an order of the same court dated May 31, 2018. The order dated January 18, 2018, insofar as appealed from, granted those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the third, fourth, and seventh through tenth causes of action. The order dated May 31, 2018, insofar as appealed from, upon reargument, adhered to so much of the original determination in the order dated January 18, 2018, as granted those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the third, fourth, and seventh through tenth causes of action.

ORDERED that the appeal from the order dated January 18, 2018, is dismissed, as the portion of the order appealed from was superseded by the order dated May 31, 2018, made upon reargument; and it is further,

ORDERED that the order dated May 31, 2018, is modified, on the law, by deleting the provision thereof, upon reargument, adhering to so much of the original determination in the order dated January 18, 2018, as granted those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the third and fourth causes of action, and substituting therefor a provision, upon reargument, vacating that portion of the order dated January 18, 2018, and thereupon denying those branches of the defendants' motion; as so modified, the order dated May 31, 2018, is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, Barry's Auto Body of NY, LLC, is an automobile repair shop located on Staten Island. By summons and complaint dated September 22, 2017, the plaintiff commenced this action against, among others, the defendants Allstate Fire & Casualty Insurance Company and Allstate Insurance Company (hereinafter together Allstate), and the defendants Charles Restivo, Margaret Gardiner, Leeor Majzner, and Phillip Addali (hereinafter collectively the adjuster defendants). The plaintiff asserted causes of action against Allstate to recover damages for breach of contract (first and second causes of action) and violations of General Business Law § 349 (third and fourth causes of action). The causes of action asserted against the adjuster defendants sought to recover damages for tortious interference with contract (seventh through tenth causes of action).

The gravamen of the complaint is that the plaintiff had contracted with Allstate's insureds to repair the insureds' vehicles to their "pre-accident condition," and that pursuant to the insureds' insurance policies issued by Allstate, Allstate agreed to pay for such repairs. The plaintiff alleges that Allstate routinely misled these insureds into believing that Allstate would pay the reasonable cost to repair their vehicles, but in fact, Allstate paid less than the reasonable cost, leaving a deficiency on each of the insureds' claims and damaging the plaintiff. The plaintiff further alleges that the adjuster defendants were aware of the plaintiff's repair agreements with the insureds, and that the adjuster defendants intentionally interfered with such agreements for no legitimate purpose and with the sole purpose of harming the plaintiff.

In lieu of answering, defendants moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the third, fourth, and seventh through tenth causes of action. In an order dated January 18, 2018, the Supreme Court, among other things, granted those branches of the motion. The plaintiff then moved for leave to reargue its opposition to the defendants' motion. In an order dated May 31, 2018, the court, inter alia, upon reargument, adhered to so much of its original determination as granted those branches of the defendants' motion which were to dismiss the third, fourth, and seventh through tenth causes of action. The plaintiff appeals.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 ). Further, on a motion to dismiss pursuant to CPLR 3211(a)(7), the court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and upon considering such affidavits, the facts alleged therein must also be assumed to be true (see Kopelowitz & Co., Inc. v. Mann, 83 A.D.3d 793, 797, 921 N.Y.S.2d 108 ; Pike v. New York Life Ins. Co., 72 A.D.3d 1043, 1049, 901 N.Y.S.2d 76 ). "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its [causes of action], of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" ( Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38, 827 N.Y.S.2d 231 ; see EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 ).

To state a cause of action to recover damages for a violation of General Business Law § 349, the complaint must allege that " ‘a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice’ " ( Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941, 944 N.Y.S.2d 452, 967 N.E.2d 675, quoting City of New York v. Smokes–Spirits.Com, Inc., 12 N.Y.3d 616, 621, 883 N.Y.S.2d 772, 911 N.E.2d 834 ; see Stutman v. Chemical Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 ; Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 ; North State Autobahn, Inc. v. Progressive Ins. Group Co., 102 A.D.3d 5, 11, 953 N.Y.S.2d 96 ; Ural v. Encompass Ins. Co. of Am., 97 A.D.3d 562, 564, 948 N.Y.S.2d 621 ; Wilner v. Allstate Ins. Co., 71 A.D.3d 155, 161–162, 893 N.Y.S.2d 208 ).

The...