Silver v. Equitable Life Assur. Soc. of U.S.

• Decision Date: 18 December 1990
• Citation: 168 A.D.2d 367,563 N.Y.S.2d 78
• Parties: John A. SILVER and Gloria B. Silver, Plaintiffs-Appellants, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 78

563 N.Y.S.2d 78

168 A.D.2d 367

John A. SILVER and Gloria B. Silver, Plaintiffs-Appellants, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Dec. 18, 1990.

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

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Martin Stecher, J.), entered on March 21, 1989, which granted defendant's motion for summary judgment dismissing the first cause of action of the complaint and that portion of the second cause of action seeking punitive damages, recovery under New York Civil Rights Law section 40-c, and attorneys' fees, unanimously affirmed, without costs.

Order, of the same court and justice entered August 23, 1989, which, inter alia, granted plaintiffs' motion pursuant to CPLR Section 2219 to resettle the court's prior order, granted plaintiffs' motion pursuant to CPLR § 2221 for reargument to the extent of permitting plaintiffs to seek attorneys' fees only pursuant to the Federal Rehabilitation Act of 1973, and which denied plaintiffs' motion pursuant to CPLR § 3025(b) to amend their complaint to add a second cause of action seeking damages for a violation of plaintiffs' rights under the Fourteenth Amendment to the United States Constitution and a sixth cause of action for intentional infliction of emotional distress on behalf of plaintiff Gloria Silver, unanimously affirmed, without costs.

Plaintiff John Silver and his mother, plaintiff Gloria Silver, commenced this action against defendant Equitable Life Assurance Society of the United States ("Equitable") based upon Equitable's alleged discrimination against plaintiff John Silver on the basis of his congenital mental retardation, by issuing a lifetime major medical expense policy containing an allegedly discriminatory exclusion rider. Plaintiffs sought $200,000 in punitive damages, an order directing defendant Equitable to issue the insurance policy without the rider, and attorneys' fees.

The IAS Court properly dismissed plaintiffs' cause of action under Civil Rights Law § 40-c for plaintiffs' failure to meet the statutory requirements of notice to the Attorney General as specifically required by New York Civil Rights Law § 40-d. Plaintiffs have not established that State procedural requirements for a State cause of action need not be complied with if there is also a cause of action asserted based upon a Federal statute. (Lopez v. S.B. Thomas, Inc., 831 F.2d 1184).

Similarly, we find that plaintiffs have failed to allege or provide evidence of any conduct by defendant Equitable evincing such a high degree of moral turpitude or wanton and malicious behavior as to warrant the imposition of punitive damages under § 504 of the Rehabilitation Act, New York Civil Rights Law § 40-c or New York Insurance Law §§ 2608 and 4224(b). (Gelman v. Department of Education, 544 F.Supp. 651; People v. Hamilton, 125 A.D.2d 1000, 511 N.Y.S.2d 190, app. dsm'd 58 N.Y.2d 800, 459 N.Y.S.2d 266, 445 N.E.2d 649, app. dsm'd 58 N.Y.2d 605, 459 N.Y.S.2d 1028, 445 N.E.2d 655; Royal Globe Ins. Co. v. Chock Full O'Nuts Corp., 86 A.D.2d 315, 449 N.Y.S.2d 740; N.Y. Ins. Law § 109[c][1]. Consequently, plaintiffs' claim for attorneys' fees, other than as a "prevailing party" entitled to reasonable attorneys' fees under the Rehabilitation Act (29 U.S.C. § 794(a)(b)), is inappropriate in the absence of a valid claim for punitive damages. (Jacobson v. New York Property Ins. Underwriting Assn., 120 A.D.2d 433, 501 N.Y.S.2d 882.)

Equally devoid of merit is plaintiffs' contention that the New York Insurance Department's alleged "remission" in its investigation of plaintiffs' complaint of defendant Equitable's alleged discriminatory conduct for approximately two months stated a claim for relief under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Here, plaintiffs clearly did not establish that the alleged discriminatory conduct constituted "State action" or was tantamount to State condonation of the alleged...