Superior Officers Council Health & Welfare Fund v. Empire Healthchoice Assurance, Inc.

Full title: SUPERIOR OFFICERS COUNCIL HEALTH & WELFARE FUND, et al., Appellants, v…

Court: Court of Appeals of New York.

Date published: Nov 21, 2011

2011 N.Y. Slip Op. 8449 (N.Y. 2011)

2011 N.Y. Slip Op. 8449

935 N.Y.S.2d 574

959 N.E.2d 511

Opinion

2011-11-21

SUPERIOR OFFICERS COUNCIL HEALTH & WELFARE FUND, et al., Appellants, v. EMPIRE HEALTHCHOICE ASSURANCE, INC., etc., Respondent.

Mirkin & Gordon, P.C., Great Neck (Joel Spivak, Donna M. Cliff and Stephen F. Gordon of counsel), for appellants. Gibson, Dunn & Crutcher LLP, New York City (Randy M. Mastro and Jonathan D. Fortney of counsel), for respondent.

Chief Judge LIPPMAN and Judges CIPARICK

Mirkin & Gordon, P.C., Great Neck (Joel Spivak, Donna M. Cliff and Stephen F. Gordon of counsel), for appellants. Gibson, Dunn & Crutcher LLP, New York City (Randy M. Mastro and Jonathan D. Fortney of counsel), for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed, with costs.

The Appellate Division properly construed the plain language of the agreement and determined that plaintiffs' failure to adopt a drug formulary bars them from sharing in certain rebates that defendant received from prescription drug manufacturers. Additionally, plaintiffs fail to state a cause of action for breach of fiduciary duty separate and apart from their breach of contract claim.

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.