Berardino v. Ochlan
Decision Date | 15 December 2003 |
Docket Number | 2002-10276. |
Citation | 2003 NY Slip Op 19434,770 N.Y.S.2d 75,2 A.D.3d 556 |
Parties | THOMAS BERARDINO, Respondent, v. CHRISTOPHER OCHLAN, Appellant. |
Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the amended complaint is dismissed insofar as asserted against the defendant Christopher Ochlan.
The plaintiff is the trustee of an irrevocable life insurance trust created by his father, Joseph Berardino, and his mother. Over the course of several months, Joseph Berardino met with the defendant Christopher Ochlan, a life insurance agent, to discuss the exchange of an existing life insurance policy for a new policy with a longer term and greater rate of return. The plaintiff ultimately purchased a new policy, allegedly with his father's approval. The cash value of the new policy was approximately $180,000 less than that of the former policy as a result of the exchange.
The plaintiff subsequently commenced this action asserting three causes of action in his amended complaint against Ochlan alleging fraud and negligent misrepresentation, violation of Insurance Law § 2123 (a) (2), and violation of General Business Law § 349. The causes of action are based on the plaintiff's claim that Ochlan failed to disclose to him or to his father that there would be a substantial reduction in the cash value of the policy. Ochlan moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7). In the order appealed from, the Supreme Court dismissed the fraud cause of action with leave to replead and otherwise denied the motion. We reverse the order insofar as appealed from.
Where documentary evidence definitively contradicts the plaintiff's factual allegations and conclusively disposes of the plaintiff's claim, dismissal pursuant to CPLR 3211 (a) (1) is warranted (see Prudential Wykagyl/Rittenberg Realty v Calabria-Maher, 2 AD3d 422 [2003]; New York Community Bank v Snug Harbor Sq. Venture, 299 AD2d 329 [2002]). The documentary evidence submitted by Ochlan established that the reduction in cash value was disclosed to the plaintiff. The plaintiff acknowledged receipt of a policy comparison form which indicated the reduction in value. As to the plaintiff's allegation that disclosure was not made to his father, Joseph Berardino is not a plaintiff and, because he is...
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