Jacobson v. New York Property Ins. Underwriting Ass'n

• Decision Date: 22 May 1986
• Citation: 120 A.D.2d 433,501 N.Y.S.2d 882
• Parties: Tobin B. JACOBSON, Plaintiff-Respondent, v. NEW YORK PROPERTY INSURANCE UNDERWRITING ASSOCIATION, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 882

501 N.Y.S.2d 882

120 A.D.2d 433

Tobin B. JACOBSON, Plaintiff-Respondent, v. NEW YORK PROPERTY INSURANCE UNDERWRITING ASSOCIATION,

Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

May 22, 1986.

G.M. Carlton, Rego Park, for plaintiff-respondent.

B.R. Rudy, for defendant-appellant.

Before MURPHY, P.J., and KUPFERMAN, ROSS, ROSENBERGER and WALLACH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered September 4, 1985, which, inter alia, (1) conditionally granted the defendant's motion to dismiss the fourth and fifth causes of action, and, (2) granted plaintiff leave to amend the complaint, so as to incorporate into the first cause of action the claims made in the dismissed fourth and fifth causes of action, is unanimously modified, on the law and on the facts, only to the extent of: (1) granting the defendant's motion to unconditionally dismiss the fourth and fifth causes of action, and, (2) denying the plaintiff leave to amend the complaint, so as to incorporate into the first cause of action the claims made in the dismissed fourth and fifth causes of action, and otherwise affirmed, with costs.

During 1983 defendant issued a fire insurance policy, in the amount of $100,000.00, to the plaintiff, and this policy provided coverage for a building owned by the plaintiff, which was located in Queens County. Within the period of coverage, on February 14, 1984, the plaintiff's building was damaged by fire. Thereafter, the plaintiff made a claim for benefits under the policy, and, after investigation, defendant rejected that claim, upon several grounds, including alleged violation of the policy provisions pertaining to concealment and fraud.

In response to this denial of his claim, plaintiff commenced the instant action. The complaint contains five causes of action. Cause of action one, two and three allege breach of contract, improper disclaimer and failure to negotiate in good faith, respectively; while causes of action four and five seek exemplary and/or punitive damages and legal expenses and disbursements, respectively. Prior to answering, defendant moved, pursuant to CPLR rule 3211, subdivision (a), paragraph 7, to dismiss the second through the fifth causes of action for failure to state a cause of action.

Special Term, in substance, granted defendant's motion to the extent of: (1) unconditionally dismissing causes of action two and three; and, (2) conditionally dismissing causes of action four and five, in that Special Term granted plaintiff "... leave to amend the complaint solely to incorporate the fourth and fifth causes of action into the first cause of action ...".

Defendant appeals only from so much of Special Term's order as conditionally dismissed the fourth and fifth causes of action.

After our review of the record, we find Special Term erred.

In order to meet the pleading requirements of stating a cause of action for a claim for punitive damages, the pleader must assert "... not an isolated transaction incident to an...