Iwachiw v. Bahr
| Decision Date | 06 February 2013 |
| Docket Number | Index No. 401546/2011 |
| Citation | 2013 NY Slip Op 30283 |
| Parties | WALTER IWACHIW, RN, Plaintiff v. STEFAN BAHR, METAZUR RESTAURANT, MICHAEL MANDYBUR IWACHIW, ADORNO DENKER ASSOC. INC., TERRY SCHEINER, and TOWER GROUP, Defendants |
| Court | New York Supreme Court |
DECISION AND ORDER
Defendant Adorno Denker Assoc. Inc. moves, __ Restaurant cross-moves, and defendant Scheiner separately moves to dismiss the complaint based on its failure to state a claim against them. C.P.L.R. § 3211(a)(7). The thrust of the complaint's allegations against Adorno Denker and Scheiner is that they participated with other defendants in fraudulently or negligently denying plaintiff Workers' Compensation and insurance coverage for property loss. The complaint simply alleges that Metazur Restaurant was negligent and also claims wrongful death, malpractice, and defamation against all defendants.
To establish lack of involvement in any denial of insurance benefits to plaintiff or in any of defendants' other actions alleged in the complaint, Adorno Denker and Scheiner rely not just on the complaint or on undisputed documents, but on affidavits by Adorno Denker's President and by Scheiner. Theiraffidavits may well support a motion for summary judgment dismissing the claims against these defendants, C.P.L.R. § 3212(b), but in the context of a motion to dismiss the complaint pursuant to C.P.L.R. § 3211(a)(7), the court may not consider defendants' affidavits, which simply dispute the facts alleged against defendants. Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595 (2008); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994); Solomons v. Douglas Elliman LLC, 94 A.D.3d 468, 469 (1st Dep't 2012). See C.P.L.R. § 3211(a)(1); Greenapple v. Capital One, N.A., 92 A.D.3d 548, 550 (1st Dep't 2012); Correa v. Orient-Express Hotels, Inc., 84 A.D.3d 651 (1st Dep't 2011); McCullv v. Jersey Partners, Inc., 60 A.D.3d 562 (1st Dep't 2009). Since defendants present no other documents to support the motions except orders in related actions referred to below, the court turns to the allegations in the complaint.
The complaint provides no detail as to what actions by any defendants were fraudulent or what insurance claims they fraudulently or negligently cancelled, failed to file, or otherwise denied to plaintiff. His unsworn opposition to Scheiner's motion indicates that defendant Tower Group's misdescription of his mother's house caused the denial of insurance coverage for the house, but he nowhere pleads the source of any duty on defendants' part to provide insurance coverage to him. The opposition similarly indicates thatScheiner misdescribed the house to the court, but not that she misrepresented any fact to plaintiff.
A fraud claim requires plaintiff to allege that defendants misrepresented or omitted a material fact, knowing the misstatement or omission was false, to induce plaintiff to rely on it, and that plaintiff justifiably relied on the misrepresentation or omission and incurred damages from that reliance. Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 178 (2011); Gosmile. Inc. v. Levine, 81 A.D.3d 77, 81 (1st Dep't 2011); Nicosia v. Board of Mgrs. of the Weber House Condominium, 77 A.D.3d 455, 456 (1st Dep't 2010); Zanett Lombardier, Ltd. v. Maslow, 29 A.D.3d 495, 496 (1st Dep't 2006). Plaintiff must plead the circumstances of any claimed fraud in detail, such as the contents of any misrepresentation and when and to whom it was stated. C.P.L.R. § 3016(b); Pludeman v. Northern Leasing Sys., Inc., 10 N.Y.3d 486, 492 (2008); El Entertainment U.S. LP v. Real Talk Entertainment, Inc., 85 A.D.3d 561, 562 (1st Dep't 2011); Waggoner v. Caruso, 68 A.D.3d 1, 6 (1st Dep't 2009); Caldwell v. Gumley-Haft L.L.C., 55 A.D.3d 408 (1st Dep't 2008).
Since plaintiff pleads none of these elements, let alone in detail, the complaint, even when supplemented by his affidavits in opposition to the motions and cross-motion, fails to support a claim of fraud perpetrated by any defendants against him. Therefore the court grants the motions and cross-motion to dismiss the fraud claim against defendants Adorno Denker, Metazur Restaurant, and Scheiner. C.P.L.R. §§ 3016(b), 3211(a)(7).
Plaintiff also claims that defendants conspired to deny him insurance coverage. New York law does not recognize a civil claim of conspiracy to commit a tort independent of the tort claim itself. Alexander & Alexander v. Fritzen, 68 N.Y.2d 968, 969 (1986); Hoeffner v. Orrick, Herrington & Sutcliffe LLP, 85 A.D.3d 457, 458 (1st Dep't 2011); Waggoner v. Caruso, 68 A.D.3d at 6. Since plaintiff fails to allege the elements of fraud with specificity or how defendants participated together to commit fraud or any other tort, the court grants the motions and cross-motion to dismiss plaintiff's conspiracy claim against defendants Adorno Denker, Metazur Restaurant, and Scheiner. C.P.L.R. § 3211(a)(7). Finally, since plaintiff fails to specify any duty, contractual or otherwise, to provide insurance to plaintiff, any breach of contract, or any negligence unrelated to insurance, the court also grants the motions and cross-motion to dismiss any claim against defendants Adorno Denker, Metazur Restaurant, and Scheiner regarding their negligence or their denial of insurance coverage. Id.
Without specifying defendant Adorno Denker, defendant Metazur Restaurant, or defendant Scheiner in particular, plaintiff alleges that all defendants intentionally caused the wrongful death of Roxanne Gurewicz Soliwada, committed unspecified malpractice, and defamed him. Because he fails to allege a relationship to Soliwada or her estate that would confer standing to maintain a wrongful death claim or allege how AdornoDenker, Metazur Restaurant, or Scheiner was involved in causing Soliwada's death, the court grants the motions and cross-motion to dismiss the wrongful death claim against defendants Adorno Denker, Metazur Restaurant, and Scheiner. Id.; N.Y. Est. Powers & Trust Law §§ 5-4.1(1), 11-3.2(b); Baker v. Bronx Lebanon Hosp. Ctr., 53 A.D.3d 21, 24 (1st Dep't 2008); Barry & Sons. Inc. v. Instinct Prods. LLC, 15 A.D.3d 62, 66 (1st Dep't 2005).
Adorno Denker is an insurance broker. For the same reasons plaintiff fails to allege a negligence claim, he also fails to allege any professional negligence on Adorno Denker's part in rendering insurance brokerage services to him that proximately caused him actual damages.
Plaintiff fails to show that he, rather than his mother Josefa Iwachiw, retained Adorno Denker's services, or that the property insurance procured through its services for 48-35 41st Street, Sunnyside, was for property he owned. While plaintiff attests that he held his mother's power of attorney effective October 22, 2002, and in that capacity demanded that Adorno Denker change the insurance coverage and cease acting as insurance agent for the property, absent the document itself, his recitation of its terms is hearsay and thus may not be considered to supplement his complaint. See, e.g., Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366 & n. (1998); Thomas v. Thomas, 70 A.D.3d 588, 591 (1st Dep't 2010); DaCosta v. Trade-Winds Envtl. Restoration, Inc., 61 A.D.3d 627, 628-29 (2d Dep't 2009); Lessoff v. 26 Ct. St. Assoc., LLC, 58 A.D.3d 610, 611 (2d Dep't 2009).Nonetheless, were the court to consider this allegation, an order dated March 13, 2003, appointing plaintiff's brother guardian of Josefa Iwachiw's property superseded the prior power of attorney described by plaintiff. In the Matter of Iwachiw, Index. No. 29496-02 (Sup. Ct. Queens Co. Mar. 13, 2003).
Moreover, even assuming plaintiff was acting on his mother's behalf, he draws no causal connection between Adorno Denker's alleged refusal to accede to his demands and any losses to him or even to her. Most significantly, however, even were he Adorno Denker's client, defendant insurance broker or agent, as well as defendant restaurant, is not a professional subject to a malpractice claim. Chase Scientific Research v. NIA Group, 96 N.Y.2d 20, 30 (2001) ; Manes Org, v. Meadowbrook-Richman, Inc., 2 A.D.3d 292, 293 (1st Dep't 2003); Busker on Roof Ltd. Partnership Co. v. Warrington, 283 A.D.2d 376 (1st Dep't 2001).
To plead malpractice against defendant Scheiner, an attorney, plaintiff must allege that her negligence in rendering legal services to him proximately caused him actual damages. O'Callaghan v. Brunelle, 84 A.D.3d 581, 582 (1st Dep't 2011); LaRussp,v. Katz, 30 A.D.3d 240, 243 (1st Dep't 2006); Brooks v. Lewin, 21 A.D.3d 731, 734 (1st Dep't 2005); IMP Indus, v. Anderson Kill & Olick, 267 A.D.2d 10, 11 (1st Dep't 1999). Negligence in rendering legal services is the failure to exercise the ordinary reasonable skill of a member of the legal profession. Darby & Darby v. VSI Intl., 95 N.Y.2d 308, 313 (2000). Proximate cause is established when plaintiffdemonstrates that, but for the attorney's negligence, he would not have sustained ascertainable damages. LaRusso v. Katz, 30 A.D.3d at 243; Brooks v. Lewin, 21 A.D.3d at 734.
Plaintiff pleads none of the elements of professional negligence as to Scheiner or any defendant. Since the complaint, even as supplemented by plaintiff's affidavits, fails to support a claim of malpractice by any defendant against plaintiff, the court grants the motions and cross-motion to dismiss the malpractice claim against defendants Adorno Denker, Metazur Restaurant, and Scheiner. C.P.L.R. § 3211(a)(7).
A claim for defamation, like fraud, must be pleaded with specificity. C.P.L.R. § 3016(a). Plaintiff fails to allege any defendant's specific defamatory words as required, LoFaso v. City of New York. 66 A.D.3d 425, 426 (1st Dep't 2009); BCRE 230 Riverside LLC v. Fuchs. 59 A.D.3d 282,...
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