Proven Results.
Proven Results.

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

NATIONWIDE INSULATION & SALES, INC., respondent,

v.

NOVA CASUALTY COMPANY, appellant.

June 29, 2010.

 

74 A.D.3d 1297

In this decision the Second Department reversed the lower Court's decision granting our client summary judgment, as Plaintiff failed to prove that our client had committed bad faith.  The Court further found that puntive damages are not available in a claim of bad faith.

 

Opinion

 

*1297 In an action *1298 to recover damages for breach of contract and for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an underlying action entitled Panasuk v. Viola Park Realty, LLC, 41 A.D.3d 804, 839 N.Y.S.2d 520 commenced in the Supreme Court, Rockland County, under Index No. 2797/04, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Berliner, J.), entered September 15, 2009, as denied that branch of its motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7).

 

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant’s motion which was to dismiss the plaintiff’s demand for punitive damages, and substituting therefor a provision granting that branch of the defendant’s motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

 

[1] “On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading is to be afforded a liberal construction” (Scoyni v. Chabowski, 72 A.D.3d 792, 793, 898 N.Y.S.2d 482; see CPLR 3026; Uzzle v. Nunzie Ct. Homeowners Assn., Inc., 70 A.D.3d 928, 929–930, 895 N.Y.S.2d 203; Nelson v. Roth, 69 A.D.3d 912, 913, 893 N.Y.S.2d 605). “The court must accept the facts as alleged in the complaint as true, accord the plaintiffs the benefit of every possible favorable inference, and determine whether the facts as alleged fit within any cognizable legal theory” (Tom Winter Assoc., Inc. v. Sawyer, 72 A.D.3d 803, 804, 898 N.Y.S.2d 480; see Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970; Scoyni v. Chabowski, 72 A.D.3d at 792, 898 N.Y.S.2d 482; Moore v. Liberty Power Corp., LLC, 72 A.D.3d 660, 897 N.Y.S.2d 723).

 

[2] [3] An insurer’s duty to defend is broader than its duty to indemnify (see Automobile Ins. Co. of Hartford v. Cook, 7 N.Y.3d 131, 137, 818 N.Y.S.2d 176, 850 N.E.2d 1152; Global Constr. Co., LLC v. Essex Ins. Co., 52 A.D.3d 655, 655–656, 860 N.Y.S.2d 614; Lucas v. Homolac, 247 A.D.2d 591, 591–592, 669 N.Y.S.2d 250; Hanover Ins. Co. v. Cowan, 172 A.D.2d 490, 491, 568 N.Y.S.2d 115). “If the allegations of the complaint are even potentially within the language of the insurance policy, there is a duty to defend” (Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435, 443, 749 N.Y.S.2d 456, 779 N.E.2d 167; see Automobile Ins. Co. of Hartford v. Cook, 7 N.Y.3d at 137, 818 N.Y.S.2d 176, 850 N.E.2d 1152; Ruder & Finn v. Seaboard Sur. Co., 52 N.Y.2d 663, 670, 439 N.Y.S.2d 858, 422 N.E.2d 518).

 

Affording the complaint a liberal construction, and according the plaintiff every favorable inference, the plaintiff has set forth causes of action to recover damages for breach of contract and for a judgment declaring that the defendant was obligated to defend and indemnify the plaintiff in the underlying action. Accordingly, the Supreme Court properly denied those branches of the defendant’s motion which were to dismiss those causes of action.

 

[4] *1299 However, even when construed liberally, the plaintiff’s complaint failed to allege a tort independent of the defendant’s breach of its contractual obligations. Because punitive damages are not recoverable for an ordinary breach of contract, the plaintiff’s demand for punitive damages for the defendant’s denial of coverage must be dismissed (see Rocanova v. Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603, 613, 612 N.Y.S.2d 339, 634 N.E.2d 940; Reads Co., LLC v. Katz, 72 A.D.3d 1054, 900 N.Y.S.2d 131; 99 Cents Concepts, Inc. v. Queens Broadway, LLC, 70 A.D.3d 656, 659, 893 N.Y.S.2d 627; Tartaro v. Allstate Indem. Co., 56 A.D.3d 758, 868 N.Y.S.2d 281).

 

The defendant’s remaining contentions are not properly before this Court as they were raised for the first time in its reply brief (see Levinsky v. Mugermin, 52 A.D.3d 477, 857 N.Y.S.2d 915).

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