Summary
finding a claim under § 349 unviable because it "essentially alleges a private contract dispute . . . unique to the parties, rather than conduct that affects the consumers at large"
Summary of this case from NG v. HSBC Mortgage Corp.Opinion
May 3, 2001.
Order, Supreme Court, New York County (Paula Omansky, J.), entered January 28, 2000, which, to the extent appealed from, denied defendant leave to amend his answer with respect to the second counterclaim, and paragraphs 59 to 99, of his proposed second amended answer, and order, same court and Justice, entered June 26, 2000, which, upon reargument, adhered to the January 28, 2000 order, unanimously affirmed, without costs.
George Berger, for plaintiff-respondent.
Daniel S. Perlman and DiPasquale, Pro Se.
Russ Haven, Mark Scherzer and A. Christopher Wieber, for Amici Curiae.
BEFORE: Sullivan, P.J., Rosenberger, Williams, Mazzarelli, Friedman, JJ.
The proposed counterclaim under General Business Law (GBL) § 349 is not viable because the counterclaim "essentially alleges a private contract dispute over policy coverage that is unique to the parties, rather than conduct that affects consumers at large" (see, Korn v. First UNUM Life Ins. Co., 277 A.D.2d 355, 717 N.Y.S.2d 606). This case is about a decision as to coverage, made on the basis of facts concerning this particular insured (see, Pellechia Pellechia, Inc. v. Am. Natl. Fire Ins. Co., 244 A.D.2d 395). Although GBL § 349 is not necessarily inapplicable in insurance disputes (see, New York Univ. v. Cont. Ins. Co., 87 N.Y.2d 308, 321), it is here since all that is at issue is the sufficiency of a particular proof of loss (see, Schunk v. New York Cent. Mut. Fire Ins. Co., 237 A.D.2d 913). We have not reached defendant insured's argument that the 1995 contract between plaintiff insurer and an adjuster, newly added as a party to this action pursuant to the first order on appeal, should be voided ab initio and immediate relief awarded defendant, since that argument is beyond the scope of the appeal as defined by defendant's notice of appeal (see, Watts v. Gardiner, 90 A.D.2d 615). Were we to reach it, we would find no basis for judgment as a matter of law at this time (see, DiPasquale v. Sec. Mut. Life Ins. Co., 273 A.D.2d 621). Motions seeking to, inter alia, file a proposed response brief as amicus curiae and to strike supplemental record on appeal denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.