O'Keefe v. Allstate Ins. Co.

• Decision Date: 13 December 2011
• Citation: 90 A.D.3d 725,2011 N.Y. Slip Op. 09103,934 N.Y.S.2d 481
• Parties: Patrick O'KEEFE, et al., appellants, v. ALLSTATE INSURANCE COMPANY, et al., respondents.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09103

90 A.D.3d 725

934 N.Y.S.2d 481

Patrick O'KEEFE, et al., appellants,

v.ALLSTATE INSURANCE COMPANY, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 13, 2011.

Lawrence V. Carra, Mineola, N.Y., for appellants.

Feldman, Rudy, Kirby & Farquharson, P.C., Jericho, N.Y. (Brian R. Rudy of counsel), for respondents.

MARK C. DILLON, J.P., RANDALL T. ENG, L. PRISCILLA HALL and LEONARD B. AUSTIN, JJ.

In an action, inter alia, to recover damages for breach of an insurance contract, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Woodard, J.), entered September 16, 2010, which granted the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against the defendants Mark Malenczak, David Mateer, and Freida Hicks and to dismiss the third cause of action and so much of the complaint as sought to recover punitive damages and an attorney's fee insofar as asserted against the defendant Allstate Insurance Company, and denied their cross motion pursuant to CPLR 3124 to compel discovery.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against the individual defendants, Mark Malenczak, David Mateer, and Freida Hicks (hereinafter collectively the individual defendants), all employees of the defendant Allstate Insurance Company (hereinafter the insurer), as they cannot, under the circumstances of this case, be held personally liable to the plaintiffs ( see Bardi v. Farmers Fire Ins. Co., 260 A.D.2d 783, 787, 687 N.Y.S.2d 768; Schunk v. New York Cent. Mut. Fire Ins. Co., 237 A.D.2d 913, 915, 655 N.Y.S.2d 210; Benatovich v. Propis Agency, 224 A.D.2d 998, 998–999, 637 N.Y.S.2d 551).

With respect to the complaint insofar as asserted against the insurer, the third cause of action sounds in fraud but relates directly to the breach of contract claims, in that it alleges that the insurer's actions were undertaken to avoid paying the plaintiffs the amounts specified in their insurance policy. Accordingly, the third cause of action cannot be sustained ( see Pepper v. Hezghia, 307 A.D.2d 959, 960, 762 N.Y.S.2d 917; Schunk v. New York Cent. Mut. Fire Ins. Co., 237 A.D.2d at 913–915, 655 N.Y.S.2d 210; F. Nathanson & Co. v. Marinello, 192 A.D.2d 575, 596 N.Y.S.2d 133; Manshul Constr. Corp. v. City of New York, 143 A.D.2d 333, 336, 532 N.Y.S.2d 419).

Moreover, the Supreme Court properly granted that branch of the motion which was to dismiss so much of the complaint as sought an award of an attorney's fee against the insurer. An “insured may not recover the expenses incurred in bringing an affirmative action against an insurer to settle its rights under the policy” ( New York Univ. v. Continental Ins. Co., 87...