Maki v. Travelers Cos.

• Decision Date: 08 December 2016
• Parties: Frank MAKI, Appellant, v. The TRAVELERS COMPANIES, INC., et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1228

44 N.Y.S.3d 220

2016 N.Y. Slip Op. 08274

Frank MAKI, Appellant,

v.The TRAVELERS COMPANIES, INC., et al., Respondents, et al., Defendant.

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

Dec. 8, 2016.

Frank Maki, Walton, appellant pro se.

Kenney Shelton Liptak Nowak, LLP, Buffalo (Judith Treger Shelton of counsel), for The Travelers Companies, Inc. and others, respondents.

Before: GARRY, J.P., EGAN JR., ROSE, DEVINE and MULVEY, JJ.

DEVINE, J.

Appeal from an order of the Supreme Court (Lambert, J.), entered December 11, 2015 in Delaware County, which, among other things, granted certain defendants' motion to dismiss the complaint.

Pursuant to an arrangement in which he agreed to lease his tractor truck to, and work as an independent contractor for, a transportation company, plaintiff was obliged to obtain commercial automobile liability insurance. He accordingly reached out to defendant Mang Insurance Agency, LLC, a retail insurance broker, which consulted with defendant LoVullo Associates, Inc., an insurance wholesaler. The result was plaintiff purchasing a policy issued by defendant Northland Insurance, allegedly a wholly-owned subsidiary of defendant The Travelers Companies, Inc., for the period August 7, 2008 to August 7, 2009. Plaintiff was issued proof of insurance so that he could enter into the lease agreement, but was instructed to then provide Mang with a complete copy of the lease agreement and his vehicle registration.

Plaintiff alleges that he provided that documentation to Mang on August 28, 2008. Mang advised plaintiff that it did not have a complete copy of the lease agreement, however, and notified him in writing that he must provide the full documentation by September 18, 2008 "in order for [his] coverage to remain in force." Northland then gave written notice to plaintiff, as required by the insurance contract, that it intended to cancel the policy as of October 11, 2008. Plaintiff alleges that the missing pages of the lease agreement were provided to Mang prior to that date but that, despite assurances from employees of Mang that the problem had been resolved, Northland proceeded with the promised cancellation. In December 2008, plaintiff was involved in a motor vehicle accident that left him injured and his tractor truck damaged (see Maki v. Bassett Healthcare, 141 A.D.3d 979, 979–980, 35 N.Y.S.3d 587 [2016] ). Plaintiff then attempted to make an insurance claim, at which point he learned that the policy had been canceled.

Plaintiff commenced this action in September 2014, asserting claims for breach of contract and fraud against Travelers, Northland, LoVullo and Mang, as well as certain individuals employed by those entities.¹ A motion to dismiss the complaint in part was filed by Travelers, Northland and LoVullo, as well as individuals who worked for one or more of those entities, defendants William Halpin, Dawn Varga and Michelle Meschke (hereinafter collectively referred to as the individual defendants). The motion sought dismissal of the fraud claim against Northland and the complaint in its entirety against Travelers, LoVullo and the individual defendants. Plaintiff cross-moved for summary judgment on his breach of contract claim against Northland—despite the fact that Northland had not yet served an answer—and to substitute Travelers Indemnity Company as a party defendant in the place of Travelers. Supreme Court granted the motion and denied the cross motion, and plaintiff now appeals.

In considering a "pre-answer motion[ ] to dismiss the complaint for failure to state a cause of action, we must give the pleadings a liberal construction, accept the allegations as true and accord the plaintiff[ ] every possible favorable inference" (Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d 46, 52, 29 N.Y.S.3d 879, 49 N.E.3d 1171 [2016] ; see Loch Sheldrake Beach & Tennis Inc. v. Akulich, 141 A.D.3d 809, 814, 36 N.Y.S.3d 525 [2016] ). Any affidavits submitted by plaintiff may be used to cure any deficiencies in the pleadings (see Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d at 52, 29 N.Y.S.3d 879, 49 N.E.3d 1171 ), but the "affidavit" submitted by plaintiff in support of his cross motion is unsworn and of no probative value (see CPLR 3211[c] ; 3212[b]; Enos v. Werlatone, Inc., 68 A.D.3d 713, 714, 890 N.Y.S.2d 109 [2009] ). After considering the allegations in the complaint, we affirm.

Dealing first with the claims against the individual defendants, "[a] review of the record fails to reveal any factual allegations that [they] acted either outside the scope of their employment or for personal profit" in a manner that would open them to personal liability (Freyne v. Xerox Corp., 98 A.D.2d 965, 965, 470 N.Y.S.2d 187 [1983] ; see American–European Art Assoc. v. Trend Galleries, 227 A.D.2d 170, 171–172, 641 N.Y.S.2d 835 [1996] ). Plaintiff instead takes issue with the individual defendants because they performed their work duties in acting upon the representations of Mang that plaintiff had not provided complete copies of the needed documents. Supreme Court therefore correctly dismissed the complaint against them (see Lewiarz v. Travco Ins. Co., 82 A.D.3d 1464, 1468, 919 N.Y.S.2d 227 [2011] ; Freyne v. Xerox Corp., 98 A.D.2d at 965, 470 N.Y.S.2d 187 ).

Turning to the breach of contract claims against Travelers and LoVullo, neither had a contractual relationship with plaintiff, as Northland was the corporate entity that issued the insurance...