Kastin v. GEICO Gen. Ins. Co.

190 A.D.3d 710

140 N.Y.S.3d 521

Gordon H. KASTIN, appellant,

v.GEICO GENERAL INSURANCE COMPANY, respondent.

2018–10147

2019–01743

Index No. 610974/17

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

Argued—October 19, 2020

January 13, 2021

Jaroslawicz & Jaros PLLC, New York, N.Y. (David Tolchin and Daniel C. Perrone III of counsel), for appellant.

Montfort, Healy, McGuire & Salley LLP, Garden City, N.Y. (Donald S. Neumann, Jr., of counsel), for respondent.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered July 9, 2018, and (2) an order of the same court entered January 4, 2019. The order entered July 9, 2018, granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint. The order entered January 4, 2019, denied the plaintiff's motion for leave to reargue its opposition to the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the appeal from the order entered January 4, 2019, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order entered July 9, 2018, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

On June 6, 2016, the plaintiff allegedly sustained personal injuries while operating a vehicle which was struck in the rear by another vehicle. The plaintiff's vehicle was insured by the defendant under an automobile insurance policy, which included coverage for supplementary uninsured/underinsured motorist (hereinafter SUM) benefits, with a coverage limit of $250,000 per person. In September 2017, the plaintiff sent a letter to the defendant to demand that it tender the full policy limit of $250,000 under the SUM endorsement. In a responsive letter, the defendant stated that it was "willing to negotiate any claim in good faith," and that "[u]pon completion of our review, we will contact you to discuss the merits of this case." In October 2017, the plaintiff commenced this action, inter alia, to recover damages for breach of contract and fraud, alleging, among other things, that the defendant "refused to make payment." The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. In an order entered July 9, 2018, the Supreme Court granted the defendant's motion. The plaintiff appeals.

"On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Pacific W., Inc. v. E & A Restoration, Inc., 178 A.D.3d 834, 835, 111 N.Y.S.3d 906 ; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). "Where ... evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless the movant can show that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it" ( Pacific W., Inc. v. E & A Restoration, Inc., 178 A.D.3d at 835, 111 N.Y.S.3d 906 ).

Here, the evidentiary material submitted in support of the defendant's motion conclusively established that the plaintiff's allegation that the defendant "refused to make payment" under the subject policy was not a fact at all (see McKee v. McKee, 171 A.D.3d 909, 911, 98 N.Y.S.3d 219 ). Thus, the plaintiff failed to state a cause of action alleging breach of contract.

Furthermore, the plaintiff failed to state a cause of action...