Koffler v. The Cincinnati Ins. Co.
| Decision Date | 01 May 2023 |
| Docket Number | Index No. 604866/2022 |
| Parties | Daniel Koffler, individually and as Trustee of the Benefit Trust 2017, Plaintiff, v. The Cincinnati Insurance Company, Fort Orange Claim Service, Inc. d/b/a FOCUS Adjusters, Certified Restoration Services, Inc., RLC Building Consulting & Appraisals Corp., The Levine Group, Inc., Precision Scope Building Consulting, LLC, Patrick Young, Robert Corley, Jordan Levine, and Richard Pisco, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
The Law Firm of Elias C. Schwartz, PLLC
Attorneys for Plaintiff
Rivkin Radler LLP
Attorneys for Defendant
The Cincinnati Insurance Company
Law Office of Craig A. Blumberg
Attorneys for Defendants
The Levine Group Inc.
Precision Scope Building Consulting, LLC
Jordan Levine and Richard Pisco
Upon the E-file document list numbered 47 to 69, 73 to 99, 101, 104 to 110 and 115 read and considered on the application of defendant The Cincinnati Insurance Company for, inter alia, an order pursuant to CPLR 7501 confirming an appraisal award, pursuant to CPLR 3211 (a)(1) and (a)(7) dismissing the first, second, third, fourth, fifth and sixth causes of action of plaintiff's complaint, on the application of defendant Richard Pisco for an order dismissing the complaint as against him pursuant to CPLR 3211 (a)(1), (2), (7), and (8), and on the application of defendant Jordan Levine for an order dismissing the complaint as against him pursuant to CPLR 3211 (a)(1), (2), (7), and (8); it is
ORDERED that the respective motions of the parties (sequences 001, 002, and 003) are consolidated for purposes of a determination herein; and it is further
ORDERED that the motion by defendant The Cincinnati Insurance Company for an order pursuant to CPLR 7501 confirming an appraisal award, pursuant to CPLR 3211 (a)(1) and (a)(7) dismissing the first, second, third, fourth, fifth, and sixth causes of action of plaintiff's complaint, and plaintiff's claim for consequential and punitive damages and attorneys' fees, is granted, only to the extent that the second and fifth causes of action asserted against this defendant are dismissed, for the reasons set forth herein; and it is further
ORDERED that the motion by defendant Richard Pisco for an order dismissing the complaint as against him pursuant to CPLR 3211 (a)(1), (2), (7), and (8) is granted pursuant to CPLR 3211 (a)(1) and (7), for the reasons set forth herein; and it is further
ORDERED that the motion by defendant Jordan Levine for an order dismissing the complaint as against him pursuant to CPLR 3211 (a)(1), (2), (7), and (8) is granted pursuant to CPLR 3211 (a)(1) and (7), for the reasons set forth herein.
This is an action by plaintiff Daniel Koffler, individually and as trustee of the Benefit Trust 2017, (collectively referred to herein as "plaintiff") arising from a fire that occurred on February 15, 2021 at the premises located at 290 Barrett Hill Road, Mahopac, New York 10541 (the "subject premises"). The complaint, filed on March 16, 2022, alleges that the fire destroyed 98% of the dwelling located at the subject premises resulting in damages of $962,337.94, as estimated by non-party R.G. Associates. The subject premises were insured by defendant The Cincinnati Insurance Company ("CIC") under a policy with a risk of loss to the dwelling limit of $1,000,000, a limit of $200,000 for other structures, a personal property limit of $500,000, loss of use in the amount of actual loss with a $50,000 deductible, and equipment breakdown coverage of $100,000 with a $500 deductible (the "policy"). The complaint alleges that plaintiff engaged the services of defendant Jordan Levine ("Levine") and his company, defendant The Levine Group Inc. ("TLG") to assist in presenting and negotiating a settlement of the policy claim with CIC in connection with the subject fire. In furtherance thereof, plaintiff and defendant Levine entered into an agreement pursuant to which TLG would receive a commission for its preparation, presentation, adjustment, and negotiation of a settlement of the claim for the damages sustained at the subject premises. The complaint further alleges that defendants Levine and TLG filed a claim with defendant CIC on behalf of plaintiff but that defendant CIC would only pay $408,728.79 based upon the estimate of its appraiser. It is alleged that this partial payout was based upon an estimate that omitted key elements of plaintiff's damage claim and purposefully understated plaintiff's damages. The complaint alleges that defendants Levine and TLG then requested appraisal of the claim against defendant CIC under the policy and retained defendants Richard Pisco ("Pisco") and Precision Scope Building Consulting, LLC ("Precision") for that purpose. Defendant CIC designated defendant Patrick Young ("Young") of defendant Fort Orange Claim Service, Inc. d/b/a FOCUS Adjusters, as its appraiser. The complaint alleges that Pisco and Young could not agree on an appraisal amount and thereafter selected as the umpire, defendant Robert Corley ("Corley"), of defendants Certified Restoration Services, Inc. and RLC Building Consulting & Appraisals Corp. The complaint further alleges that defendants Pisco and Precision submitted to defendants Young and Corley plaintiff's original estimate prepared by R.G. Associates showing damages of $962,337.94. The complaint further alleges that no report prepared by Young was ever presented to Pisco. The complaint further alleges that despite the estimate provided by Pisco, defendant Corley issued an appraisal award of $444,857.58 in replacement cost value (the "award"), which was $517,480.36 less than the amount plaintiff was entitled to under the policy. The complaint alleges eleven (11) causes of action seeking, inter alia, to set aside the appraisal award, a declaration of coverage under the subject policy, and damages for breach of contract, breach of the covenant of good faith and fair dealing, violation of Insurance Law section 2601, bad faith conduct, professional negligence, and violation of section 349 of the General Business Law ("GBL 349").
Defendants CIC, Levine, and Pisco now separately move to dismiss the claims and damages asserted against them. Defendant CIC also moves to confirm the award. Defendant CIC argues that the counts asserted against it, those being the first, second, third, fourth, fifth, and sixth causes of action, cannot stand, as the award is final and binding in the absence of any factual allegations of fraud, duress, or bad faith. Defendant CIC also argues that certain claims are subject to dismissal as being duplicative of other claims and that other counts should be dismissed because no private right of action exists. Defendants Levine and Pisco move to dismiss the claims asserted against them claiming that they did not agree or intend to be personally bound by the agreement entered into between their respective corporate entities and they did not enter into any contracts with plaintiff in their personal capacities. These individual defendants assert that any contracts with plaintiff were signed by them as agents for their corporate entities. Defendants Levine and Pisco further assert that no claim exists against them for professional negligence nor have any such claims been stated against them under GBL 349. Plaintiff opposes the motion by defendant CIC for confirmation of the award asserting there are factual issues precluding the relief sought. Plaintiff further asserts that the award cannot be confirmed due to the alleged misconduct of defendants Young and/or Corley, who intentionally excluded defendant Pisco from most of the appraisal process, did not provide vital information to him, and that defendant Corley, as umpire, engaged in misconduct during the appraisal process. Plaintiff further opposes the motion by defendant CIC to dismiss arguing that misconduct on the part of defendants Young and/or Corley was sufficiently stated on the claim to vacate the award. In particular, it is alleged that defendant Pisco, who was retained by plaintiff, was excluded from receiving material and relevant evidence, was prevented from presenting relevant evidence to defendant Corley, and that defendant Corley engaged in ex parte communications with Young. Plaintiff also urges a denial of the motion by defendant CIC, as there are questions of fact presented which cannot be decided on a motion to dismiss and that require discovery. Plaintiff opposes the motions by defendants Levine and Pisco arguing that claims of professional negligence are asserted against them, which are not based upon any agreements signed by them. Defendant CIC replies arguing, inter alia, that plaintiff failed to submit clear and convincing evidence in admissible form demonstrating that the award was the product of fraud, duress, or bad faith.
Defendants Levine and Pisco each submit reply papers arguing, inter alia, that plaintiff cannot assert a professional negligence claim them arising from their respective contracts, as there is no duty owed to plaintiff independent of the contract. After the submission date, the Second Department issued a decision in Matter of Paluch v. Kohn, 204 A.D.3d 804, 165 N.Y.S.3d 601 (2d Dept 2022), pursuant to which the Court requested and received supplemental submissions from plaintiff and defendant CIC. The Court heard oral argument on March 24, 2023.
According to its submissions, defendant CIC moves pursuant to CPLR 7601 to confirm the award issued by defendant Corley in the amount of $444, 857.58. CPLR 7601 states in its entirety:
A special proceeding may be commenced to specifically enforce an agreement that a question of valuation, appraisal or other issue or controversy be determined by a person named...
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