| Head v Emblem Health |
| 2017 NY Slip Op 08483 |
| Decided on December 5, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on December 5, 2017
Richter, J.P., Manzanet-Daniels, Andrias, Kern, Singh, JJ.
5132 161536/14
v
Emblem Health, et al., Defendants-Respondents.
Law Offices of David L. Trueman, P.C., New York (David L. Trueman of counsel), for appellant.
Christian & Barton, LLP, Richmond, VA (Henry I. Willett, III of the bar of the State of Virginia, admitted pro hac vice, of counsel), for respondents.
Order, Supreme Court, New York County (Joan B. Lobis, J.), entered October 11, 2016, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the causes of action for fraud and bad faith breach of insurance contract, unanimously affirmed, without costs.
In support of the fraud causes of action, the complaint fails to allege sufficient facts to establish the element of a material misrepresentation (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). While the Attorney General's investigation documented numerous instances of defendants' misconduct, contrary to plaintiff's contention, it did not detail instances of fraud. Plaintiff's allegation that defendants entered into the insurance contract with an undisclosed intention not to perform in accordance with the contract's terms is insufficient to establish a misrepresentation or a material omission (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995]). The fraud causes of action were correctly dismissed as duplicative of the breach of contract cause of action (see Coppola v Applied Elec. Corp., 288 AD2d 41, 42 [1st Dept 2001]).
There is no independent cause of action for bad faith breach of insurance contract arising from an insurer's failure to perform its obligations under an insurance contract (see Orient Overseas Assoc. v XL Ins. Am., Inc., 132 AD3d 574 [1st Dept 2015]; McGowan v Great N. Ins. Co., 78 AD3d 1137 [2d Dept 2010]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 5, 2017
CLERK