Manno v. Mutual Ben. Health and Acc. Ass'n

• Decision Date: 20 May 1959
• Parties: Dominick MANNO v. MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION and United Benefit Life Insurance Company.
• Court: New York Supreme Court

Page 709

187 N.Y.S.2d 709

18 Misc.2d 80

Dominick MANNO v. MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION and United Benefit Life Insurance Company.

Supreme Court, Special Term, Queens County, Part I.

May 20, 1959.

Alfred Jonas, Jr., New York City, for plaintiff.

Watters & Donovan, New York City (Thomas A. Hartnett, New York City, and Richard J. Barnes, New York City, of counsel), for defendants.

J. IRWIN SHAPIRO, Justice.

The defendants move to dismiss the amended complaint for legal insufficiency, pursuant to rule 106, subdivision 4 of the Rules of Civil Practice. In the nine causes of action set forth in the amended complaint, the plaintiff seeks to rescind, on the ground of alleged duress, settlement agreements which he entered into with the defendants and to set aside a surrender of three policies of accident and health insurance and to reinstate them. Provision was made in the policies for the waiver of premium benefits during total and permanent disability and plaintiff claims that the defendants did not at any time waive the payment of premiums and always collected them from the plaintiff. Included among the causes of action are three for the recovery of the amounts so paid as premiums from the commencement of the alleged total and permanent disability. The plaintiff also seeks to recover $500 as medical expense reimbursement provided for in one of the policies.

Two of the policies were issued by the defendant Mutual Benefit Health and Accident Association while the third was issued by the codefendant United Benefit Life Insurance Company, alleged to be a wholly owned subsidiary of the former. Each policy provided $100 monthly benefits for life for injury or accident resulting in total disability. If total disability resulted from illness, one policy provided $100 monthly benefits for life while the other two policies paid such benefits for a period of five years. In his prayer for relief, the plaintiff tenders the consideration paid by the defendants under the settlement agreements less any benefits that accrued to date.

The plaintiff alleges that on May 23, 1956, he met with an accident at his place of employment which caused him to become totally disabled; that on January 18, 1957, while so disabled, he suffered a heart attack which has since confined him to his home; and that he has been directed by his doctor not to return to any work and 'remains totally and permanently disabled within the meaning of the polic[ies].' It is further alleged that the plaintiff received full benefits until April 17, 1957; that on July 12, 1957, the defendant Mutual refused payment on one policy beyond April 17, 1957, and on its second policy made payment at the reduced rate of $40 per month as for partial disability; and that the codefendant, on its policy, likewise reduced payments to $40 monthly; that between July 12 and October 16, 1957, a representative of the defendants visited the plaintiff and stated that the defendants 'would make no further payments unless plaintiff agreed to surrender' the policies. It is then alleged that on October 16, 1957, when over $2,300 was due the plaintiff under the three policies, a representative of the defendants visited him 'while he was alone and in bed due to his heart condition' and that he was then informed that the defendants refused to make payment but would, upon surrender of the three policies, pay him $6,770.

Then follows this key allegation: 'That solely by reason of the economic duress practiced upon him and the coercion and other acts of the defendant[s], including the willful and deliberate breach of * * * [their] contract[s] with the plaintiff, and the physical condition and ill health of the plaintiff at the time defendant[s'] representative imposed the defendant[s'] demands upon him, plaintiff was unable to resist the defendant[s'] coercion and surrendered the aforesaid polic[ies] of insurance to the defendant[s'] representative, receiving drafts totalling [$6,770].' It is further alleged that the plaintiff is permanently disabled and that the defendants knew this when the settlement agreements were made.

While a pleading attacked for legal insufficiency must be accorded every fair and reasonable intendment (St. Regis Tribe of Mohawk Indians v. State of New York, 5 N.Y.2d 24, 36, 177 N.Y.S.2d 289, 297; Dyer v. Broadway Central Bank, 252 N.Y. 430, 432, 169 N.E. 635), liberality 'cannot be used as a substitute for matters of substance' and legal conclusions 'utilized to supply material facts by inference within the doctrine of liberal construction.' Didier v. Macfadden Publications, 299 N.Y. 49, 53, 85 N.E.2d 612, 613. 'General allegations of wrongdoing based upon undisclosed facts do not state a cause of action.' Gerdes v. Reynolds, 281 N.Y. 180, 183-184, 22 N.E.2d 331, 333; Lifshutz v. Adams, 285 N.Y. 180, 185, 33 N.E.2d 83, 85; Kalmanash v. Smith, 291 N.Y. 142, 153-154, 51 N.E.2d 681, 686-687.

Such is the case here. The plaintiff has alleged, in substance, no more than that he has suffered a total and permanent disability, that defendants refused to make payments under the policies and deliberately breached the contracts and that while he was alone and in bed due to his heart condition, he acceded to the defendants' demand to surrender the policies for a consideration of $6,770. This, the plaintiff has characterized as 'economic duress' and 'coercion' practiced by the defendants. However, to allege that an agreement or settlement was made under 'duress' or 'coercion' is to state no more than a conclusion. Kamenitsky v. Corcoran, 177 App.Div. 605, 607, 164 N.Y.S. 297, 299. Generally, it is not duress to do or threaten to do what one has the legal right to do (Dunham v. Griswold, 100 N.Y. 224, 226, 3 N.E. 76; 30 East End, Inc. v. World Steel Products Corp., Sup., 110 N.Y.S.2d 754, 757; 17A Am.Jur., Duress and Undue Influence, sec. 18). Similarly, a threat to breach a contract does not, without more, constitute duress (Doyle v. Rector, etc., of Trinity Church, 133 N.Y. 372, 377, 31 N.E. 221, 222; Clasen v. Doherty, 242 App.Div. 502, 503, 275 N.Y.S. 958, 959; Halperin v. Wolosoff, 282...