Granato v. Allstate Ins. Co.
| Decision Date | 25 June 1979 |
| Citation | 70 A.D.2d 948,418 N.Y.S.2d 108 |
| Parties | Evelyn GRANATO et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Respondent; et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Malerba, Abruzzo, Clancy, Downes & Frankel, Huntington (Robert F. Malerba, Huntington, of counsel), for appellants.
Rivkin, Leff & Sherman, Garden City (John F. Morrison, Garden City, of counsel), for respondent.
Before SUOZZI, J. P., and LAZER, GULOTTA, SHAPIRO and COHALAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover compensatory and punitive damages based upon, Inter alia, an alleged violation of a fiduciary obligation, plaintiffs appeal from a judgment of the Supreme Court, Suffolk County, entered December 5, 1977 which granted defendant Allstate Insurance Company's motion to dismiss the complaint as to it pursuant to CPLR 3211 (subd. (a), pars. 5 and 7).
Judgment affirmed, with costs.
Any damages caused by delay were on the whole preventable. Section 675 of the Insurance Law provided plaintiffs with a quick and easy method to resolve any dispute with respect to first-party benefits. The insurance company cannot be held liable for plaintiffs' failure to utilize this remedy until 10 months after their benefits had been terminated.
Plaintiffs' cause of action for punitive damages is also defective. In order to prove an action for punitive damages against an insurance company, it is necessary to show that "in its dealings with the general public, (the insurance company) had engaged in a fraudulent scheme evincing such 'a high degree of moral turpitude and * * * such wanton dishonesty as to imply a criminal indifference to civil obligations' (Walker v. Sheldon, 10 N.Y.2d 401, 405, 223 N.Y.S.2d 488, 179 N.E.2d 497)." (Buttignol Constr. Co. v. Allstate Ins. Co., 22 A.D.2d 689, 253 N.Y.S.2d 172, affd., 17 N.Y.2d 476, 266 N.Y.S.2d 982, 214 N.E.2d 162; MSR Assoc. v. Consolidated Mut. Ins. Co., 58 A.D.2d 858, 396 N.Y.S.2d 684; Hubbell v. Trans World Life Ins. Co. of N. Y., App.Div., --- N.Y.S.2d --- (decided herewith)). Plaintiffs' cause of action does not suggest that type of scheme and is therefore insupportable.
SUOZZI, J. P., and GULOTTA, SHAPIRO and COHALAN, JJ., concur.
LAZER, J., concurs in the affirmance of the judgment, with the following memorandum:
While I concur, I do so on constraint of MSR Assoc. v. Consolidated Mut. Ins. Co., 58 A.D.2d 858, 396 N.Y.S.2d 684 and Buttignol Constr. Co. v. Allstate Ins. Co., 22 A.D.2d 689, ...
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