Fulton v. Allstate Ins. Co.

• Court: New York Supreme Court — Appellate Division
• Citation: Fulton v. Allstate Ins. Co., 14 AD3d 380, 788 N.Y.S.2d 349, 2005 NY Slip Op 203 (N.Y. App. Div. 2005)
• Decision Date: 13 January 2005
• Docket Number: 4616.
• Parties: ELVETTA FULTON, Respondent, v. ALLSTATE INSURANCE COMPANY et al., Appellants.

14 A.D.3d 380

788 N.Y.S.2d 349

2005 NY Slip Op 00203

ELVETTA FULTON, Respondent, v. ALLSTATE INSURANCE COMPANY et al., Appellants.

4616.

Appellate Division of the Supreme Court of the State of New York, First Department.

January 13, 2005.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 27, 2003, which, insofar as appealed from, denied without prejudice defendants' motion for summary judgment dismissing the causes of action for punitive damages and attorneys' fees, granted plaintiff's cross motion to amend the complaint, and implicitly granted the cross motion to compel discovery, unanimously reversed, on the law, without costs, defendants' motion for summary judgment granted to the extent of dismissing the second, fourth and fifth causes of action, the cross motion to amend the complaint denied, and the cross motion to compel discovery denied without prejudice to review of outstanding discovery demands at a further conference before the IAS court.

No issues of fact preclude summary judgment as to the second and fourth causes of action for punitive damages. "Punitive damages are not recoverable for an ordinary breach of contract as their purpose is not to remedy private wrongs but to vindicate public rights" (Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613 [1994]). "Thus, a private party seeking to recover punitive damages must not only demonstrate egregious tortious conduct by which he or she was aggrieved, but also that such conduct was part of a pattern of similar conduct directed at the public generally" (id.).

Although a motion for summary judgment may be denied if the facts essential to establish opposition "may exist but cannot then be stated" (CPLR 3212 [f]), "`[m]ere hope that somehow the plaintiffs will uncover evidence that will prove their case, provides no basis . . . for postponing a decision on a summary judgment motion'" (Jones v Surrey Coop. Apts., Inc., 263 AD2d 33, 38 [1999], quoting Kennerly v Campbell Chain Co., 133 AD2d 669, 670 [1987]).

Defendant insurer offered a good faith basis for its conclusion that Fulton's insurance claim may have been fraudulent; in opposition, Fulton merely contended that "these practices affect a class of consumers particularly in the Bronx," and sought discovery. Plaintiff's entirely unsupported assertion falls far short of the showing needed to withstand a motion for summary judgment on the ground of a need for discovery. Moreover, plaintiff offered nothing to refute the insurer's assertion that she had failed to disclose having previously filed two automobile theft claims.

Similarly, plaintiff's fifth...