v. Allstate Ins. Co.

• Decision Date: 15 March 2017
• Docket Number: CV-011628-16
• Citation: 2017 NY Slip Op 50321 (U)
• Parties: M.V.B. Collision Inc. d/b/a MID ISLAND COLLISION, as assignee of LUANNE DRESHER, as assignee of JOSEPH DARGENIO, and as assignee of CHARLES CARDILE, Plaintiff(s) v. Allstate Insurance Company, KAYSHA CORDERO, PHILIP PODBERESKY, JOHN PLUCHINO and NORMAN WONG, Defendant(s)
• Court: New York District Court

2017 NY Slip Op 50321(U)

M.V.B. Collision Inc. d/b/a MID ISLAND COLLISION, as assignee of LUANNE DRESHER, as assignee of JOSEPH DARGENIO, and as assignee of CHARLES CARDILE, Plaintiff(s) v. Allstate Insurance Company, KAYSHA CORDERO, PHILIP PODBERESKY, JOHN PLUCHINO and NORMAN WONG, Defendant(s)

CV-011628-16

District Court of Nassau County, First District

Decided on March 15, 2017

Steven F. Goldstein, LLP, attorneys for Plaintiff, One Old Country Road, Suite 318, Carle Place, New York 11514, (516) 873-0011, Rivkin Radler, LLP, attorneys for Defendants, 926 RXR Plaza, Uniondale, New York 11556-0111, (516) 357-3000.

Scott Fairgrieve, J.

The following named papers numbered 1 to 4 submitted on this Motion for Partial Dismissal, Severance, Costs and Sanctions, on January 6, 2017

papers numbered

Notice of Motion and Supporting Documents 1

Memo of Law in Support of Motion 2

Affirmation in Opposition 3

Reply Papers to Motion 4

Background

M.V.B. Collision Inc. d/b/a Mid Island Collision, as assignee of Luanne Dresher, as assignee of Joseph Dargenio and as assignee of Charles Cardile, has commenced an action against Allstate Insurance Company (hereinafter referred to as "Allstate"), Kaysha Cordero, Philip Podberesky, John Pluchino, and Norman Wong, by the Verified Complaint, dated October 31, 2016.

Plaintiff in this action is the assignee of seven causes of action concerning property damage to automobiles insured by Allstate.

The Defendants are Allstate and four insurance adjusters who are employed by Allstate. The insurance adjusters allegedly negligently adjusted the amount of estimates for the automobiles.

The Defendants now move for an order pursuant to CPLR Rule 3211(a)(3) and (a)(7) dismissing, with prejudice, the first, fourth, fifth, sixth, and seventh causes of action, as well as the claims for punitive damages. Defendants also seek an order of severance pursuant to CPLR § 603, severing the second and third cause of action and an order for sanctions.

Verified Complaint

The first cause of action is based upon breach of contract as to Luanne Dresher, who owned a 2016 Mercedes Benz C300, to which extensive repairs were made by Plaintiff, at the claimed cost of $7,250.50. The said Mercedes was involved in an accident with Allstate's insured Marilyn Mandel, on July 7, 2016. It is alleged that Allstate had three separate adjusters who wrote an estimate in the amount of $697.45, and supplemental estimates in the amounts of $1,637.45, $588.36 and $1,152.06.

Plaintiff states that Allstate issued a policy of insurance to its insured Marilyn Mandel, which provided coverage to third-party claimants such as Luanne Dresher (intended beneficiary). The policy provided coverage as set forth in paragraph 53 of the Verified Complaint, as follows:

"That the policy of insurance issued to Defendant ALLSTATE's insured, Marilyn Mandel, provided coverage to third-party claimants, including Plaintiff's subrogor, Luanne Dresher, under 'Part V — Protection Against Loss of the Auto: Auto Collision Insurance — Coverage DD', as follows:

'We will pay for direct and accidental loss to your insured auto or a non-owned auto (including loss to an attached trailer) from a collision with another object or by upset of that auto or trailer...' "

It is alleged that Allstate breached its contractual obligations under said policy by failing to pay the full amount due under said policy to Luanne Dresher who assigned her claim to Plaintiff:

"That in failing to pay the full cost of the repairs to LUANNE DRESHER'S motor vehicle, Defendant, ALLSTATE INSURANCE COMPANY, acted in breach of the aforementioned physical damage collision coverage provision of the insurance policy purchased by Marilyn Mandel and inuring to the benefit of LUANNE DRESHER, and caused Plaintiff, M.V.B. COLLISION INC., and its assignor, LUANNE DRESHER, to incur economic damages.

That the amount offered by Defendant, ALLSTATE INSURANCE COMPANY, to repair the motor vehicle owned by Plaintiff's assignor, LUANNE DRESHER, was not sufficient to restore said motor vehicle to its condition at the time of the loss and, as such, Defendant, ALLSTATE INSURANCE COMPANY, was and is in breach of the insurance policy issued to Plaintiff's assignor, LUANNE DRESHER.

That the amount sought herein, falls within the limits of liability described and enumerated in the policy.

Upon information and belief, Plaintiff, M.V.B. COLLISION INC., has sustained damages in the amount of $3,765.54, representing the amount LUANNE DRESHER was caused to have due and owing to Plaintiff, M.V.B. COLLISION INC., due to the breach of contract by Defendant, ALLSTATE INSURANCE COMPANY, plus costs, disbursements and interest.

By virtue of the breach Plaintiff, M.V.B. COLLISION INC., has been damaged."

The second cause of action seeks damages sustained by Joseph Dargenio for breach of contract. It is alleged that Joseph Dargenio owned a 2015 Nissan Rogue, which was insured by Allstate. The said vehicle sustained property damage from an accident that occurred on June 8, 2016.

As a result of said accident, Allstate had the Defendant, Norman Wong, inspect the Nissan on or about June 16, 2016, who estimated the damages at $9,876.13. The Verified Complaint states that supplemental estimates were written for the Nissan by Allstate's adjuster, Defendant, John Pluchino, on July 11, 2016 and August 3, 2016, in the sums of $534.28 and $601.41. The total amount of damage sustained by the Nissan totaled $13,531.75 which was fully repaired by Plaintiff. Allstate offered only $11,011.82 to Joseph Dargenio and his assignor Plaintiff, leaving a balance owed by Allstate to Plaintiff of $2,519.93. Plaintiff alleges that the foregoing actions of Allstate constitutes a breach of contract. Punitive damages are also sought to be recovered.

The third cause of action is based upon breach of contract asserted against Allstate from an assignment by Charles Cardile to Plaintiff. Charles Cardile owned a 2014 Mercedes Benz CLS 550 which was insured by Allstate. The said vehicle was involved in an accident on July 6, 2016, which caused Allstate to have its representative Philip Podberesky write two estimates of $9,519.47 and $1,062.79.

Plaintiff repaired the said Mercedes Benz for a cost of $16,196.50. Defendant refused to pay Plaintiff the $16,196.50, but only offered to pay $11,651.35. The foregoing constitutes a breach of contract by Allstate toward its insured Charles Cardile of $4,545.15.

As stated herein, Charles Cardile assigned his cause of action to Plaintiff. Plaintiff seeks the sum of $4,545.15 plus punitive damages.

The fourth cause of action is based upon the negligence of the Defendant, Kaysha Cordero. Plaintiff claims that the Defendant, Kaysha Cordero, inspected the 2016 Mercedes Benz C300, owned by Luanne Dresher, for Allstate, and wrote an estimate for $697.45. Plaintiff states Defendant, Kaysha Cordero, was "negligent and/or reckless" in her inspection and preparation of the repair estimate for the Mercedes Benz.

It is also alleged that Defendant, Kaysha Cordero, violated New York State Insurance Law and Regulation 64 § 216.7 . . . "in that she refused and/or failed to negotiate Plaintiff's assignor in good faith, resulting in damages to Plaintiff, M.V.B. Collision Inc."

Plaintiff states that Defendant, Kaysha Cordero, is liable because:

"That the Defendant, Kaysha Cordero, owed a duty of care to Plaintiff's assignor to professionally and competently inspect the subject vehicle in a non-negligent manner and to write estimate(s) regarding the repair(s) to said vehicle in a professional; competent; and, non-negligent manner, pursuant to the requirements imposed by the State of New York in issuing her an independent Adjuster's License and to abide by all New York State laws, rules and regulations in that regard.

By virtue of this negligence, Plaintiff, M.V.B. COLLISION INC., has been damaged in the amount of $10,828.62."

The fifth cause of action is based upon negligence of Defendant, Philip Podberesky. It is alleged that Defendant inspected a 2014 Mercedes Benz CLS 550 owned by Charles Cardile on July 19, 2016, on behalf of Allstate, and wrote an estimate for $9,519.47. Defendant also wrote a supplemental estimate for $1,062.79. The Verified Complaint alleges that Philip Podberesky was negligent and reckless in the inspection and preparation of the repair estimate for the Mercedes Benz. Defendant is alleged to have violated New York State Insurance Law and Regulation 64 § 216.7 because he refused, or failed, to negotiate Plaintiff's claim in good faith. Defendant, Philip Podberesky, is liable because:

"Upon information and belief, Defendant, PHILIP PODBERESKY, was negligent and/or reckless in his preparation of a repair estimate regarding the subject motor vehicle.

Upon information and belief, Defendant, PHILIP PODBERESKY, was in violation of the New York State Insurance Law and Regulation 64 §216.7, in that he refused and/or failed to negotiate Plaintiff's assignor's claim in good faith, resulting in damages to Plaintiff, M.V.B. COLLISION INC.

Upon information and belief, Defendant, PHILIP PODBERESKY, was negligent and/or reckless in failing to properly inspect the subject motor vehicle and to properly estimate the damage and cost of repair to said motor vehicle.

That the Defendant, PHILIP PODBERESKY, owed a duty of care to Plaintiff's assignor to professionally and competently inspect the subject vehicle in a non-negligent manner and to write estimate(s) regarding the repair(s) to said vehicle in a professional; competent; and, non-negligent manner, pursuant to the requirements imposed by the State of New York in issuing him an independent Adjuster's License and to abide by all New York State laws, rules and regulations in that regard.

By virtue of this negligence, Plaintiff, M.V.B. COLLISION INC., has been damaged in the amount of $10,828.62."

The sixth cause of action is asserted against Defendant, John Pluchino, based upon negligence. The Verified...