Long Beach Road Holdings, LLC v. Foremost Insurance Company et al
Filing
61
MEMORANDUM OF DECISION & ORDER granting 49 Motion to Dismiss; For the foregoing reasons, it is hereby ordered that the Fairmonts motion is granted in its entirety and the Plaintiffs claims as to Fairmont are dismissed. Accordingly, the Plaintiffs sole remaining cause of action is a breach of contract claim against Foremost. The Clerk of Court is directed to terminate Fairmont from this action and amend the caption consistent with this Order.So Ordered by Judge Arthur D. Spatt on 2/11/2015. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
LONG BEACH ROAD HOLDINGS, LLC
Plaintiff,
MEMORANDUM OF
DECISION & ORDER
14-cv-1801 (ADS)(ARL)
-againstFOREMOST INSURANCE COMPANY and
FAIRMONT INSURANCE BROKERS, LTD.,
Defendants.
---------------------------------------------------------X
APPEARANCES:
Nielsen, Carter & Treas, LLC
Attorneys for the Plaintiff
3838 N. Causeway Boulevard, Suite 2850
Metairie, LA 70002
By: Kim Tran Britt, Esq., Of Counsel
Michael J. Khader P.C.
Attorney for the Plaintiff
733 Yonkers Ave, Suite 200
Yonkers, NY 10704
The Law Offices of Michael J. Mauro, Esq., P.C.
Attorney for the Plaintiff
1 Raddison Plaza, 8th Flr.
New Rochelle, NY 10801
Maroney O'Connor LLP
Attorneys for the Defendant Foremost Insurance Company
11 Broadway, Suite 831
New York, NY 10004
By: Michael Raymond Frittola, Esq.
Ross T. Herman, Esq., Of Counsel
Babchik & Young, LLP
Attorneys for the Defendant Fairmont Insurance Brokers, LTD.
200 East Post Road
White Plains, NY 10601
By: Jack Babchik, Esq.
Jordan Sklar, Esq., Of Counsel
1
SPATT, District Judge.
On March 20, 2014, the Plaintiff Long Beach Road Holdings, LLC (the “Plaintiff”)
commenced this action seeking damages in connection with the decision by the Defendant
Foremost Insurance Company (“Foremost”) to deny coverage for flood-related damages to the
Plaintiff’s property sustained in Superstorm Sandy.
The Plaintiff asserts common law and New York State consumer law claims against the
Defendant Foremost, the insurance carrier on the Plaintiff’s Standard Flood Insurance Policy
(“SFIP”), and the Defendant Fairmont Insurance Brokers, LTD. (“Fairmont”), the broker that
helped to procure the SFIP for the Plaintiff. In particular, the Plaintiff asserts: (i) breach of
contract claims against both of the Defendants; (ii) a claim against Fairmont under section 349 of
the New York General Business Law (“NYGBL”) for allegedly deceptive and misleading
consumer practices; and (iii) a negligence claim against Fairmont.
Presently before the Court is a motion by Fairmont pursuant to Federal Rule of Civil
Procedure (“Fed. R. Civ. P.”) 12(b) to dismiss the claims against it. For the reasons set forth
below, Fairmont’s motion is granted and the complaint is dismissed as against Fairmont.
I. BACKGROUND
A. Underlying Facts
Unless otherwise noted, the Court draws the following facts from the Plaintiff’s
complaint and construes them in the light most favorable to the Plaintiff.
1. Write Your Own Insurance Program
As relevant to the instant dispute, Congress created the National Flood Insurance
Program (“NFIP”) by passing the National Flood Insurance Act of 1968, 42 U.S.C. § 4001, et
seq. (Id. at ¶ 4.) The purpose of the statute was to provide adequate flood insurance in at-risk
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areas by offering subsidized flood insurance. Id. at § 4001(b). On April 1, 1979, the Federal
Emergency Management Agency (“FEMA”) became the agency responsible for operating the
NFIP. See 42 U.S.C. § 4071.
In 1983, FEMA created the Write Your Own (“WYO”) Program, which gave insurance
companies the ability to issue SFIPs, under their own names as insurers, to individuals as fiscal
agents of the government. Fletcher v. Standard Fire Ins. Co., No. 13-CV-5463 (ADS), 2015 WL
248595, at *1 (E.D.N.Y. Jan. 17, 2015) (Spatt, J). Under the WYO program, “insurance
companies serve as administrators for the federal program, and it is the U.S. government, not the
companies, that pays the claims.” Id. (citing McGair v. Am. Bankers Ins. Co. of Florida, 693
F.3d 94, 96 (1st Cir. 2012)). In addition, “FEMA provides a standard text for all NFIP policies
and forbids WYOP companies from making changes,” and FEMA’s interpretations of the policy
bind all WYOP participants.” McGair, 693 F.3d 94, 96 (1st Cir. 2012) (quoting Downey v. State
Farm Fire & Cas. Co., 266 F.3d 675, 679 (7th Cir. 2001)).
2. The Parties
The Plaintiff is a New York limited liability company that maintains its principal place of
business in New Rochelle. (Compl. at ¶ 1.) The Plaintiff owned a commercial property located
in Island Park that was insured under the SFIP at issue in the present action. (Id.) The
commercial property contained a “commercial space apartment” and a dental office. (Id. Ex. A.)
Foremost is a private insurance company organized under the laws of the State of
Michigan and has its principal place of business in Grand Rapids, Michigan. (Id. at ¶ 2.)
Foremost is a WYO insurance carrier that issued the SFIP on the Plaintiff’s Island Park property.
(Id. at ¶¶ 2, 11.) Foremost has not joined Fairmont’s motion to dismiss presently before the
Court.
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Fairmont is a New York Corporation that maintains its principal place of business in
Brooklyn. (Id. at ¶ 3.) Fairmont is a licensed insurance brokerage company that the Plaintiff
engaged to purchase insurance coverage for the Plaintiff on its Island Park property. (Id. at ¶ 5.)
3. The SFIP and Damage to the Plaintiff’s Property
Prior to October 1, 2012, the Plaintiff sought to obtain a first mortgage from Westchester
Bank on its Island Park property. (Id. at Ex. E.) The loan was originally scheduled to close on
October 25, 2012. (Id.)
In an October 1, 2012 letter to the Plaintiff, Westchester Bank notified the Plaintiff that it
was required to purchase flood insurance because the Island Park property had been recategorized as in a flood zone under the NFIP. (Id. at Ex. E.)
After receiving the letter, the Plaintiff retained Fairmont to procure flood insurance for
the Plaintiff. (Id. at ¶ 13.) The Plaintiff does not clarify what date it allegedly entered into a
broker agreement with Fairmont or what the agreement required of the parties.
According to the complaint, Fairmont had a “long relationship with [the] Plaintiff[] . . . in
consulting” related to “commercial property coverage, assessment of risk, adequacy of coverage
and the handling of claims.” (Id. at ¶ 12.)
On October 25, 2012, Foremost issued an SFIP to the Plaintiff providing for $450,000 in
flood coverage. (Id. at Ex. A.) The complaint does not clarify what efforts Fairmont undertook
as the Plaintiff’s broker to procure a SFIP from Foremost.
On the same day, the Plaintiff sent a check to Foremost for $2,192 for the SFIP. (Id. at
Ex. B.) In addition, Foremost sent the Plaintiff a document entitled, “Flood Policy
Declarations.” (Id. at Ex. A.) The document defines the policy period as October 25, 2012 to
October 25, 2013. (Id.) The document further states, “These Declarations are effective as of:
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10/25/2012 at 12:01am” and that, “This Declaration Page, in conjunction with the policy,
constitutes your Flood Insurance Policy.” (Id.)
On October 25, 2012, Fairmont issued to the Plaintiff a certificate of insurance that
indicated that the policy became effective on October 25, 2012. (Compl. at ¶ 23.)
On October 29, 2012, the Plaintiff’s property was damaged as a result of flooding caused
by SuperStorm Sandy. (Compl. at ¶ 18.)
The Plaintiff’s mortgage transaction, which was originally scheduled to close on October
25, 2012, was delayed for unspecified reasons and closed on November 2, 2012. (Sklar Decl.,
Ex. C.) As a result, on November 2, 2012, Foremost sent the Plaintiff a document entitled,
“Revised Declarations.” (Id. at Ex. D.) The document listed the revised policy period as
“11/02/2012 [t]o 11/02/2013.” (Id.)
4. The Claims Process
The Plaintiff does not specify when it filed a claim for damages to its Island Park
property. However, on December 3, 2012, Foremost sent the Plaintiff a check in the amount of
$40,000 under the SFIP for damages caused to the Plaintiff’s property by SuperStorm Sandy.
(Compl. at Ex. E.)
On January 15, 2013, the Plaintiff submitted to Foremost a form entitled, “Proof of
Loss,” claiming a “net amount” of $262,205.78 in damages to his property. (Id. at Ex. C.)
In a March 25, 2013 letter to the Plaintiff, Carl Swafford (“Swafford”), a Lead Claims
Examiner for Foremost, denied the Plaintiff’s claim for two reasons. First, he denied coverage
because “[t]he adjuster’s final report and documents received indicates a loan closing did not
occur on or prior to the Date of Loss.” (Id. at Ex. E, at 1.) Swafford further noted that, “We do
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not insure a loss directly or indirectly caused by a flood that is already in progress at the time and
date . . . [t]he policy term begins; or . . . coverage is added at your request.” (Id. at 2)
Second, Swafford found that even if the loan had closed on October 25, 2012, the
Plaintiff would still not have qualified for coverage because under the NFIP, new policies are
subject to a 30 day waiting period before becoming effective. (Id. at 1.)
Finally, Swafford requested that the Plaintiff return to Foremost the $40,000 that it had
previously issued to the Plaintiff. (Id. at 3.) Swafford noted that the Plaintiff could appeal her
decision to FEMA within 60 days. (Id.)
On May 23, 2013, Joseph Spiezio (“Spiezio”), an employee of the Plaintiff, appealed
Swafford’s decision to FEMA. (Sklar Decl., Ex. B.) In his letter to FEMA, Spiezio asserted that
the flood policy became effective on October 25, 2012, not November 2, 2012. He further stated
that Fairmont “never disclosed . . . that there was a waiting period . . . . There was a total reliance
by all parties that there was no waiting period.” (Id.)
In an October 4, 2013 letter to the Plaintiff, Jhun de la Cruz (“Cruz”), a Branch Chief of
Underwriting at FEMA, denied the Plaintiff’s appeal of Foremost’s decision to deny the Plaintiff
coverage under the SFIP. (Sklar Decl., Ex. C.) Cruz noted that the NFIP Manual states, “Flood
insurance that is initially purchased in connection with the making, increasing, extending, or
renewal of a loan shall be effective at the time of loan closing, provided that the policy is applied
for at or before closing.” (Id.)
Cruz found that although Foremost issued a policy to the Plaintiff “with an effective date
of October 25, 2012,” “additional documentation provided indicates that the loan transaction
actually took place on November 2, 2012.” (Id.) As such, Cruz found that even if the thirty-day
waiting period were waived, “the earliest the policy can be effective is November 2, 2012,”
6
which was several days after the Plaintiff suffered the “covered loss.” (Id.) Accordingly, Cruz
“concurred” with Foremost’s final decision to deny the Plaintiff with coverage under the SFIP.
(Id.)
B. Procedural History
As stated previously, on March 20, 2014, the Plaintiff commenced this action against the
Defendants Foremost and Fairmont. In particular, the Plaintiff asserts: (i) breach of contract
claims against both of the Defendants; (ii) a claim against Fairmont under section 349 of the
NYGBL for allegedly deceptive and misleading consumer practices; and (iii) a negligence claim
against Fairmont.
In its present motion, Fairmont argues that the Plaintiff fails to state any viable claims
against it, and therefore, the complaint should be dismissed as to Fairmont. For the following
reasons, the Court agrees.
II. DISCUSSION
A. Legal Standards
In deciding a Rule 12(b)(6) motion to dismiss, the court “‘must accept as true all
allegations in the complaint and draw all reasonable inferences in favor of the non-moving
party.’” Luna v. N. Babylon Teacher’s Org., 11 F. Supp.3d 396, 400–401 (E.D.N.Y. 2014)
(Spatt, J.) (quoting Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d
104, 115 (2d Cir. 2008)).
In addition, a plaintiff opposing a Rule 12(b)(6) motion must plead “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). In particular, “[w]hile a complaint attacked by
a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff’s
7
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Id.; see also
Luna, 11 F. Supp.3d at 400–401 (“Conclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to defeat a motion to dismiss.”) (citing Achtman v. Kirby,
McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006)).
The Court notes that Fairmont attaches to its present motion three exhibits: (i) the
Plaintiff’s May 23, 2013 letter to FEMA appealing Foremost’s denial of coverage; (ii) FEMA’s
October 4, 2013 letter to the Plaintiff affirming Foremost’s denial of coverage; and (iii) revised
declarations issued by Foremost referred to in FEMA’s October 4, 2013 letter. (Sklar Decl., Exs.
B–D.)
When considering a Rule 12(b)(6) motion, a court can generally “only consider the
complaint, any written instrument attached to the complaint as exhibits, or any documents
incorporated in the complaint by reference.” Garnett-Bishop v. New York Cmty. Bancorp, Inc.,
No. 12-CV-2285 (ADS), 2014 WL 5822628, at *13 (E.D.N.Y. Nov. 6, 2014) (Spatt, J) (citing
Rothman v. Gregor, 220 F.3d 81, 88–89 (2d Cir. 2000)); see also Ahluwalia v. St. George's
Univ., LLC, No. 14-CV-3312 ADS), 2014 WL 6674615, at *8 (E.D.N.Y. Nov. 25, 2014) (Spatt,
J) (“Furthermore, in deciding a motion to dismiss, the Court is confined to ‘the allegations
contained within the four corners of [the] complaint.’ . . . . This has been interpreted broadly to
include any document attached to the Complaint, any statements or documents incorporated in
the Complaint by reference, any document on which the Complaint heavily relies, and anything
of which judicial notice may be taken.”) (citing Pani v. Empire Blue Cross Blue Shield, 152 F.3d
67, 71 (2d Cir. 1998)).
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The Court finds that the Plaintiff’s claims arise, at least in part, from FEMA’s decision to
deny the Plaintiff’s appeal of Foremost’s decision to deny coverage under the SFIP for the losses
sustained to its property. Accordingly, the Court finds that although the Plaintiff did not attach
these documents to its complaint, the documents are “integral” to the complaint. Thus, the Court
may consider them in deciding present motion. See, e.g., Leder v. Am. Traffic Solutions, Inc.,
No. 14-CV-103 (ADS), 2015 WL 332136, at *6 (E.D.N.Y. Jan. 24, 2015) (Spatt, J) (“[The
plaintiff’s] claims for liability arise, at least in part, from the [p]laintiff’s receipt of the Notice of
Liability. Thus, the Court finds that the [p]laintiff incorporated the January 10, 2011 Notice of
Liability by reference to the complaint, and as such, the Court can consider it in deciding the
present motion.”); Azzolini v. Marriott Int’l, Inc., 417 F. Supp. 2d 243, 246 (S.D.N.Y. 2005)
(“Although [the] plaintiff did not attach the employee handbook to his complaint, the plaintiff
relied on the terms and effects of the employee handbook by referencing the progressive
discipline policy as the policy that Marriott breached.”).
However, the Court notes that the Fairmont also submitted with its present motion a
declaration intended to support the facts alleged in its brief. Were the Court to consider this
declaration it “would require credibility assessments and weighing of the evidence, which is not
appropriate on a motion dismiss.” Garnett-Bishop, 2014 WL 5822628, at *13; see also Johnson
v. Levy, 812 F. Supp. 2d 167, 176 (E.D.N.Y. 2011) (“There is no basis for the Court to consider
the affidavits of Jay Levy, Diane Levy, and Sue Campbell, the 51 Smith Street L.L.C. Operating
Agreement, or the Johnsons' Credit Report, which are attached solely for the purpose of refuting
the facts alleged in the complaint and would require credibility assessments and weighing of the
evidence, which is not appropriate on a motion to dismiss.”). Accordingly, the Court will not
consider Fairmont’s declaration for purposes of the present motion.
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Finally, the Plaintiff attaches to its opposition memorandum of law several pages from
Fairmont’s website. (James Decl., Ex. 1.) There is no basis for the Court to consider documents
from Fairmont’s website because the Plaintiff does not reference the website pages in its
complaint, nor do the website pages appear to relate to the specific policy at issue in the instant
case. Accordingly, the Court finds this document inappropriate for consideration at the motion
to dismiss stage. See Elmowitz v. Executive Towers at Lido, LLC, 571 F. Supp. 2d 370, 375
(E.D.N.Y. 2008) (“The [d]efendants submit a number of exhibits in conjunction with their
motion to dismiss. However, the majority of these exhibits are inappropriate for a motion to
dismiss, and would have been more appropriately filed in conjunction with a motion for
summary judgment, in accordance with the rules of this [c]ourt.”).
B. Subject Matter Jurisdiction
As an initial matter the Court addresses whether it has subject matter jurisdiction over the
Plaintiff’s claims against both the Defendants. See Durant, Nichols, Houston, Hodgson &
Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (“It is a fundamental precept that
federal courts are courts of limited jurisdiction and lack the power to disregard such limits as
have been imposed by the Constitution or Congress . . . . If subject matter jurisdiction is lacking
and no party has called the matter to the court's attention, the court has the duty to dismiss the
action sua sponte.”) (internal quotation marks and citations omitted).
‘“The party invoking federal jurisdiction bears the burden of establishing that’
jurisdiction exists.” Sharkey v. Quarantillo, 541 F.3d 75, 82 (2d Cir. 2008) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Where, as
here, the case is at the pleading stage and no evidentiary hearings have been held, the Court must
“accept as true all material facts alleged in the complaint and draw all reasonable inferences in
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the plaintiff’s favor.” Id. (quoting Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008)
(quoting Merritt v. Shuttle, Inc., 245 F.3d 182, 186 (2d Cir.2001)).
Subject matter jurisdiction may be premised on three bases: “(1) the parties’ diversity of
citizenship, (2) the implication of a federal question in the action, or, (3) for pendent claims
asserted solely under state law against non-diverse parties, an independent basis for jurisdiction
that is part of the same ‘case or controversy’ as the pendent claims.” Ghartey v. Farnsworth, No.
08 CIV. 6682 (LAP), 2010 WL 199691, at *1 (S.D.N.Y. Jan. 11, 2010).
With respect to the first basis, diversity of citizenship jurisdiction under 28 U.S.C. § 1332
exists where, at the time that the action commenced, no plaintiff is domiciled in the same state as
any defendant and the amount in controversy exceeds $75,000. The Plaintiff’s complaint
provides that the Plaintiff is a “limited liability [c]ompany organized under the laws of the State
of New York and maintain an office at . . . New Rochelle.” (Compl. at ¶ 1.) In determining the
citizenship of limited liability companies, the Court looks to the citizenship of each of its
members. See Bayerische Landesbank, New York Branch v. Aladdin Capital Mgmt. LLC, 692
F.3d 42, 49 (2d Cir. 2012) (“[The] [d]efendant . . . is a limited liability company that takes the
citizenship of each of its members.”) (citation omitted); see also ICON MW, LLC v. Hofmeister,
950 F. Supp. 2d 544, 546 (S.D.N.Y. 2013) (“In particular, limited liability companies, like
ICON, obtain citizenship from each of their members.”). The Plaintiff does not set forth any
allegations with respect to its structure or membership. As such, based on the record before it,
the Court cannot determine the Plaintiff’s citizenship, and thus, diversity of citizenship is not a
proper basis of subject matter jurisdiction for its claims.
With respect to the second basis, district courts pursuant to 28 U.S.C. § 1331 have subject
matter jurisdiction “over all civil actions arising under the [United States] Constitution and the
11
laws and treaties of the United States.” Further, “[u]nder the ‘well-pleaded complaint rule,’
federal jurisdiction is present only if a question of federal law appears on the face of the
plaintiff's ‘well-pleaded complaint’ — thus requiring a court to ignore any and all answers,
defenses, and counterclaims.” Sleppin v. Thinkscan.com, LLC, No. 14-CV-1387 (ADS), 2014
WL 5431352, at *3 (E.D.N.Y. Oct. 23, 2014) (quoting Fleet Bank, Nat’l Ass'n v. Burke, 160
F.3d 883, 886 (2d Cir. 1998)). In addition, federal question jurisdiction exists where “a wellpleaded complaint ‘establishes either that federal law creates the cause of action or that the
plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal
law.’” Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 137 (2d Cir. 2002) (internal quotation marks
and citation omitted); see also Williams v. Bank of New York Mellon Trust Co., No. 13-CV6814 (SJF), 2015 WL 430290, at *4 (E.D.N.Y. Feb. 2, 2015) (“Federal courts have original
federal question jurisdiction only where ‘a well-pleaded complaint establishes either that federal
law creates the cause of action or that the plaintiff's right to relief necessarily depends on
resolution of a substantial question of federal law.’”) (quoting Empire Healthchoice Assurance,
Inc. v. McVeigh, 547 U.S. 677, 690, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006)).
As stated above, the Plaintiff asserts a claim against Foremost for breach of the SFIP.
Courts have held that contract claims relating to an SFIP confer federal jurisdiction because (i)
federal common law governs the interpretation of SFIPs; (ii) SFIPs are governed by flood
insurance regulations established by FEMA; and (iii) a damage against a WYO company, such
as Foremost, will come from federal funds, not from the WYO company. See, e.g., Battle v.
Seibels Bruce Ins. Co., 288 F.3d 596, 608 (4th Cir. 2002) (finding a conversion claim to
“necessarily depend on resolution of a substantial question of federal law” because the plaintiff’s
claim is “essentially a breach of contract claim with respect to [the Plaintiff’s] SFIP, which
12
claim, as explained previously, is governed solely by federal law.”); Bd. of Directors of Rough
Riders Landing Homeowners Ass’n, Inc. v. Signature Grp., LLC, 989 F. Supp. 2d 239, 242
(E.D.N.Y. 2013) (“[The plaintiff] asserts various bases for federal jurisdiction, including federal
question jurisdiction under 28 U.S.C. § 1331 and exclusive federal jurisdiction under NFIA §
4072. The [c]ourt agrees that federal question jurisdiction under § 1331 exists over plaintiffs’
claims for a refund of SFIP premiums.”) Roybal v. Los Alamos Nat’l. Bank, 375 F. Supp. 2d
1324, 1329 (D.N.M. 2005) (“Federal common law, rather than state contract law, governs SFIP
interpretation . . . . ‘Thus, a complaint alleging breach of a[ ] SFIP satisfies § 1331 by raising a
substantial federal question on its face.’”) (quoting Newton v. Capital Assurance Co., 245 F.3d
1306, 1309 (11th Cir. 2001)); Southpointe Villas Homeowners Ass’n, Inc. v. Scottish Ins.
Agency, Inc., 213 F. Supp. 2d 586, 593 (D.S.C. 2002) (“Consequently, Plaintiff's claims involve
a federal question such that the Court has proper jurisdiction pursuant to Section 1331, because
the interpretation of a federal policy potentially places federal funds at risk, giving rise to a
uniquely federal interest so important that the “federal common law” should supplant state
law.”); Jamal v. Travelers Lloyds of Texas Ins. Co., 97 F. Supp. 2d 800, 805 (S.D. Tex. 2000)
(“Thus, to the extent that Jamal's claims are based on or involve the interpretation of the SFIP,
they present questions of federal law sufficient to establish federal question jurisdiction under 28
U.S.C. § 1331.”).
Accordingly, the Court finds that there is federal question jurisdiction pursuant to 28
U.S.C. § 1331 over the Plaintiff’s breach of contract claim as against Foremost, the WYO
insurer. However, the Plaintiff’s claims against Fairmont, at issue in the present motion, do not
raise a federal question because Fairmont is an insurance broker, not a WYO insurance carrier.
Thus, the alleged broker agreement between Farimont and the Plaintiff will not be governed by
13
FEMA regulations or federal regulations. Rather, as described below, the broker agreement will
be governed by New York law. Moreover, the Plaintiff alleges solely common law and New
York state law claims against Fairmont.
However, the Court can exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367
over the Plaintiff’s state law claims against Fairmont provided that these claims “form part of the
same case or controversy” as the federal claim alleged in the complaint – namely, the claim
against Foremost for breach of the SFIP. See Webster v. Wells Fargo Bank, N.A., No. 08 CIV.
10145 , 2009 WL 5178654, at *4 (S.D.N.Y. Dec. 23, 2009) (“[T]he exercise of supplemental
jurisdiction is proper where pendent state-law claims ‘form part of the same case or controversy’
as the federal claims in the complaint.”) (citing Caiola v. Citibank, N.A., New York, 295 F.3d
331 (2d Cir. 2002)). To determine whether state law claims “form part of the same case or
controversy” as federal claims, a court must ask if “the facts underlying the federal and state
claims substantially overlapped . . . . ‘This is so even if the state law claim is asserted against a
party different from the one named in the federal claim.”’Achtman v. Kirby, McInerney &
Squire, LLP, 464 F.3d 328, 335 (2d Cir. 2006) (quoting Briarpatch Ltd. v. Phoenix Pictures, Inc.,
373 F.3d 296, 308 (2d Cir. 2004)).
In the instant case, the Plaintiff asserts common law claims against Fairmont for breach
of contract and negligence and a claim against Fairmont under NYGBL § 349 for deceptive and
misleading consumer practices. (Compl. at ¶ 25–64.) Although these claims are labelled
differently, they are premised on the same basic allegation — namely, that Fairmont breached a
duty to the Plaintiff, contractual or otherwise, by failing to procure adequate flood insurance
coverage for the Plaintiff. (See Compl. at ¶¶ 36, 42, 48, 58.) The Court finds the question of
whether Fairmont procured adequate flood insurance is factually intertwined with the Plaintiff’s
14
federal claim against Foremost for allegedly improperly denying insurance coverage under the
SFIP. Accordingly, the Court finds that the Plaintiff’s state law claims against Fairmont arise
from the same nucleus of operative facts as the federal claims against Foremost, and, as such, the
Court will exercise supplement jurisdiction over those claims. See, e.g., Jamal v. Travelers
Lloyds of Texas Ins. Co., 97 F. Supp. 2d at 806 (“Hence, as jurisdiction over [the plaintiff’s]
flood insurance claims is exclusively federal and his claims under the homeowners’ insurance
policy arise out of the same nucleus of operative facts as his claims under the flood insurance
policy, it is logical to try these claims together.”).
C. Choice of Law
Before reaching the merits of the parties’ arguments, the Court must first decide what law
should be applied to the Plaintiff’s common law claims against Fairmont for breach of contract
and negligence. Where, as here, the court exercises supplemental jurisdiction over a party’s state
law claims, the Court applies New York choice of law rules. D'Amato v. Five Star Reporting,
Inc., No. 12-CV-3395 (ADS), 2015 WL 248612, at *9 (E.D.N.Y. Jan. 17, 2015) (Spatt, J)
(“Where, as here, the court exercises supplemental jurisdiction over the parties' state law claims
and counterclaims, the court applies New York choice of law rules.”) (citing Bass v. World
Wrestling Fed’n Entm’t, Inc., 129 F.Supp.2d 491, 503 (E.D.N.Y.2001)); see also Rogers v.
Grimaldi, 875 F.2d 994, 1002 (2d Cir. 1989) (“A federal court sitting in diversity or adjudicating
state law claims that are pendent to a federal claim must apply the choice of law rules of the
forum state.”) (citation omitted).
‘“Under New York choice-of-law rules, the first step of the analysis is to determine
whether there is a substantive conflict between the laws of the relevant choices.”’ Carroll v.
LeBoeuf, Lamb, Greene & MacRae, LLP, 623 F. Supp. 2d 504, 509 (S.D.N.Y. 2009) (citing
15
Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities,
LLC, 446 F.Supp.2d 163, 191 (S.D.N.Y.2006)). However, in the absence of a substantive
conflict, “a New York court will dispense with choice of law analysis; and if New York law is
among the relevant choices, New York courts are free to apply it.” Int’l Bus. Machines Corp. v.
Liberty Mut. Ins. Co., 363 F.3d 137, 143 (2d Cir. 2004); see also United Merch. Wholesale, Inc.
v. IFFCO, Inc., No. 13-CV-4259 (ADS), 2014 WL 4639138, at *10 (E.D.N.Y. Sept. 15, 2014)
(same).
In the instant case, neither party asserts that any other law should be applied other than
New York law. Moreover, the Court notes that both Fairmont and the Plaintiff appear to operate
businesses in New York and the property at issue is located New York. Thus, the Court will
apply New York law to the Plaintiff’s common law breach of contract and negligence claims
against Fairmont. See Interstate Foods, Inc. v. Lehmann, No. 06 CIV. 13469(JGK), 2008 WL
4443850, at *2 (S.D.N.Y. Sept. 30, 2008) (“In this case, although the parties dispute whether the
laws of New York or New Jersey should apply, neither party has asserted that the laws of New
York and New Jersey are materially different with respect to a claim of fraud against; a corporate
officer nor made a substantive argument why either would be prejudiced by applying New York
law to this claim. Therefore, the Court will apply New York law to the plaintiff’s first claim.”).
D. As to Plaintiff’s Breach of Contract Claims
In its first and third causes of action, the Plaintiff asserts that Fairmont breached its
broker agreement with the Plaintiff. In particular, the Plaintiff alleges that “Fairmont had a duty
to procure the requested specific [flood insurance] coverage as [the] Plaintiffs [sic] broker and to
the extent coverage is denied Fairmont breached its duty and contract to procure insurance
coverage,” Compl. at ¶ 36. (See also Compl. at ¶ 48) (“Fairmont has a duty to procure the
16
specific requested coverage as [the] Plaintiff’s broker and to the extent the coverage is denied
Fairmont breached its duty and contract to procure the insurance coverage.”). Since both claims
rely on similar allegations, the Court will consider them together.
Under New York law, to make out a viable claim for breach of contract, a Plaintiff must
allege: “(1) the existence of an agreement, (2) adequate performance of the contract by the
plaintiff, (3) breach of contract by the defendant, and (4) damages.” Eternity Global Master
Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir. 2004) (quoting Harsco
Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996)); see also Ahluwalia v. St. George's Univ., LLC,
No. 14-CV-3312 (ADS), 2014 WL 6674615, at *8 (E.D.N.Y. Nov. 25, 2014) (Spatt, J) (same)
(internal quotation marks and citations omitted).
The Plaintiff alleges only that a general agreement existed between the Plaintiff and
Foremost to procure flood insurance for the Plaintiff. The complaint does not attach a copy of
any agreement; allege what obligations any purported agreement imposed on Fairmont; or even
what the Plaintiff paid to Fairmont in consideration for its efforts to procure flood insurance for
the Plaintiff.
However, even without specific allegations as to the content of an agreement, courts have
found insurance brokers liable for failure to procure adequate insurance coverage under a breach
of contract theory. For example, in Shetucket Plumbing Supply Inc. v. S.C.S. Agency, Inc., No.
3:05-CV-424 (RNC), 2006 WL 544513, at *1 (D. Conn. Mar. 3, 2006), the plaintiff insured
requested that an insurance broker procure insurance coverage that provided for replacement
costs for its buildings in an amount over $5 million. The broker procured insurance for the
Plaintiff that provided far less coverage. Id. The Plaintiff’s buildings were damaged in a fire,
and the insurance company denied the Plaintiff’s claim. Id. The court denied the broker’s
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motion to dismiss the Plaintiff’s breach of contract claim because “[t]he complaint in this action
alleges, expressly or by fair implication, that the defendants specifically agreed to procure from
[the plaintiff] blanket coverage, on a replacement cost basis, for all the plaintiffs’ facilities in
Connecticut and Rhode Island, then failed to do so.” Id. at 2; see also Long Island Lighting Co.
v. Steel Derrick Barge FSC 99, 725 F.2d 839, 841 (2d Cir. 1984) (“Under New York law, a party
who has engaged a person to act as an insurance broker to procure adequate insurance is entitled
to recover damages from the broker if the policy obtained does not cover a loss for which the
broker contracted to provide insurance, and the insurance company refuses to cover the loss.”)
(collecting cases).
Here, unlike the plaintiff in Shetucket Plumbing Supply, the Plaintiff was not denied
coverage because Fairmont procured the wrong type of coverage. Rather, Foremost and FEMA
denied the Plaintiff coverage because, allegedly, the Plaintiff’s policy did not become effective
until November 2, 2012, several days after the Plaintiff suffered flood-related damages due to
SuperStorm Sandy. (Sklar Decl., Ex. C.) In its decision, FEMA noted that under the NFIP
Flood Insurance Manual, the Plaintiff’s flood insurance policy could not become effective until it
closed the loan transaction with Westchester Bank. (Id.). Therefore, FEMA concluded that
although the Plaintiff was issued a policy with an effective date of October 25, 2012, its policy
did not become effective until November 2, 2012. (Id.) Thus, the denial of coverage appears to
be attributable to actions of the Plaintiff and the Westchester Bank because they had control over
the issue of when the loan transaction closed; not Fairmont. To the extent that the Plaintiff
disagrees with the decision of Foremost to deny it coverage, then that claim is properly addressed
to Foremost, the insurance carrier, not to Fairmont, the insurance broker. Here, Fairmont was
retained to procure flood insurance for the Plaintiff, and it did so. Accordingly, the Court finds
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that the Plaintiff has failed to plausibly allege that Fairmont breached its agreement to procure
flood insurance for the Plaintiff and dismisses Plaintiff’s first and third causes of action for
breach of contract as against Fairmont.
E. As to Plaintiff’s Negligence Claim
Under New York law, in order to recover on a claim for negligence, a plaintiff must show
“(1) the existence of a duty on defendant’s part as to plaintiff; (2) a breach of this duty; and (3)
injury to the plaintiff as a result thereof.” Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 428
(2d Cir. 2013) (quoting Akins v. Glens Falls City School District, 53 N.Y.2d 325, 333, 441
N.Y.S.2d 644, 648, 424 N.E.2d 531 (1981)).
With respect to the first element, “[t]he existence of a duty is an essential element of a
negligence claim because, ‘[i]n the absence of a duty, as a matter of law, no liability can ensue.’”
Pasternack v. Lab. Corp. of Am., 892 F. Supp. 2d 540, 552 (S.D.N.Y. 2012) (quoting Farash v.
Cont'l Airlines, Inc., 574 F.Supp.2d 356, 367 (S.D.N.Y. 2008)); see also McCarthy v. Olin Corp.,
119 F.3d 148, 156 (2d Cir. 1997) (same). ‘“Although juries determine whether and to what
extent a particular duty was breached, it is for the courts first to determine whether any duty
exists.”’ Drake v. Lab. Corp. of Am. Holdings, No. 02CV1924 (FB)(RML), 2007 WL 776818,
at *2 (E.D.N.Y. Mar. 13, 2007) (quoting Darby v. Compagnie Nat’l Air France, 96 N.Y.2d 343,
347 (2001)); see also Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir. 2000) (“The
question of the existence and scope of an alleged tortfeasor’s duty ‘is, in the first instance, a legal
issue for the court to resolve.”’) (quoting Waters v. New York City Hous. Auth., 69 N.Y.2d 225,
229, 513 N.Y.S.2d 356, 505 N.E.2d 922 (1987)). In particular, “[i]dentifying the scope of an
alleged tortfeasor’s duty is “not something derived or discerned from an algebraic formula.
Rather, it coalesces from vectored forces including logic, science, weighty competing
19
socioeconomic policies and sometimes contractual assumptions of responsibility.’” Alfaro v.
Wal-Mart Stores, Inc., 210 F.3d at 114 (quoting Basso v. Miller, 40 N.Y.2d 233, 241, 386
N.Y.S.2d 564, 352 N.E.2d 868 (1976)).
In the present case, the Plaintiff argues that Fairmont had a duty to inform the Plaintiff
that the SFIP would not go into effect until after the Plaintiff closed its mortgage transaction with
Westchester Bank. (The Pl.’s Opp’n Mem. of Law at 12–20.) The Court disagrees.
Generally, under New York law insurance brokers have a “common law duty to obtain
requested coverage for their clients within a reasonable time or inform the client of the inability
to do so.” GlobalNet Financial.Com, Inc. v. Frank Crystal & Co., 449 F.3d 377, 386 (2d Cir.
2006) (quoting Murphy v. Kuhn, 90 N.Y.2d 266, 269-70, 682 N.E.2d 972 (1997)). New York
courts have been especially reluctant to impose additional duties on insurance brokers, such as
the duties of trust and confidence imposed on professionals like lawyers or engineers:
Generally, the law is reasonably settled on initial principles that insurance agents
[in New York] have a common-law duty to obtain requested coverage for their
clients within a reasonable time or inform the client of the inability to do so;
however, they have no continuing duty to advise, guide or direct a client to obtain
additional coverage. Notably, no New York court has applied [a] ‘special
relationship’ analysis to add such continuing duties to the agent-insured
relationship.
GlobalNet Financial.Com, Inc., 449 F.3d at 386 (quoting Murphy, 90 N.Y.2d at 269-70, 682
N.E.2d 972); see also Chase Scientific Research, Inc. v. NIA Grp., Inc., 96 N.Y.2d 20, 30, 749
N.E.2d 161, 167 (2001) (“Moreover, as this Court recently made clear, an insurance agent has a
common-law duty to obtain requested coverage, but generally not a continuing duty to advise,
guide or direct a client based on a special relationship of trust and confidence.”).
20
In Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 735, 985 N.Y.S.2d 448, 452 (2014), the
New York Court of Appeals had identified “three exceptional circumstances” “that may give rise
to a special relationship, thereby creating an additional duty of advisement:”
‘(1) the agent receives compensation for consultation apart from payment of the
premiums; (2) there was some interaction regarding a question of coverage, with
the insured relying on the expertise of the agent; or (3) there is a course of dealing
over an extended period of time which would have put objectively reasonable
insurance agents on notice that their advice was being sought and specially relied
on[.]’
Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 735, 985 N.Y.S.2d 448, 453 (2014) (quoting
Murphy, 90 N.Y.2d at 272, 660 N.Y.S.2d 371, 682 N.E.2d 972)).
In Voss, the New York Court of Appeals reversed the Supreme Court’s decision to grant
summary judgment for the defendant-insurance broker on the plaintiff’s negligence claim. Id. at
736. The court found that the Plaintiff had submitted enough evidence to create a material issue
of fact as to the existence of a special relationship requiring an additional duty of advisement.
Id. at 735. In particular, the court pointed to testimony by the Plaintiff that she questioned the
broker as to whether the broker was procuring the proper amount of insurance for its building
and that the broker “assured her that it was adequate based on his review of her business finances
as well as the layout of the building.” Id. Further, the Plaintiff testified that the broker
“repeatedly pledged that [it] would review coverage annually and recommend adjustments as her
businesses grew.” Id.
In Voss, the Court of Appeals favorably cited another decision by the New York Court of
Appeals. Murphy v. Kuhn, 90 N.Y.2d 266, 270, 682 N.E.2d 972, 974 (1997). There, the Court
of Appeals affirmed a summary judgment order dismissing the Plaintiff’s negligence claim
against an insurance broker. Id. at 268. The court rejected the plaintiff’s argument that a special
relationship between the Plaintiff and an insurance broker gave rise to a duty on the part of the
21
broker to disclose additional information to the Plaintiff as to “possible additional coverage
needs.” Id. The court reasoned that there is “no indication that [the plaintiff] ever inquired or
discussed with [the insurance broker] any issues involving the liability limits of the automobile
policy. Such lack of initiative or personal indifference cannot qualify as legally recognizable or
justifiable reliance.” Id. at 271.
Here, as in Murphy, the Plaintiff does not make any allegations that warrant a finding that
Plaintiff and Foremost had the kind of special relationship that courts have required to impose
duties beyond the common law duty to procure the requested insurance. For example, there are
no allegations by the Plaintiff that Fairmont “repeatedly pledged that [it] would review coverage
annually and recommend adjustments as her businesses grew,” as the insurance broker in Voss
did. See Voss, 22 N.Y.3d at 736. Other than a conclusory allegation that the Plaintiff had a
“long term relationship” with Fairmont, there are no allegations that suggest that the Plaintiff
enjoyed anything other than an ordinary consumer-agent insurance relationship with Fairmont.
See Murphy, 90 N.Y.2d at 271, 682 N.E.2d 972 (“As a matter of law, this record does not rise to
the high level required to recognize the special relationship threshold that might superimpose on
defendants the initiatory advisement duty, beyond the ordinary placement of requested insurance
responsibilities. Rather, the record in the instant case presents only the standard consumer-agent
insurance placement relationship, albeit over an extended period of time.”).
The Plaintiff also argues that Fairmont had a duty to warn the Plaintiff that the certificate
of insurance provided by Fairmont to the Plaintiff, which lists the effective date of the insurance
policy as October 25, 2012, was incorrect. (Compl. at ¶ 62.) However, the terms of the
certificate of insurance provided by Fairmont to the Plaintiff made clear that the Plaintiff could
not rely on it:
22
THIS EVIDENCE OF COMMERCIAL PROPERTY INSURANCE IS ISSUED
AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS . . .
. THIS EVIDENCE OF INSURANCE DOES NOT CONSTITUTE A
CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE ADDITIONAL INTEREST.
(Compl., Ex. H.) Thus, the Court is not persuaded that this document gave rise to a special duty
of disclosure on the part of the broker Fairmont to correct the effective date on its certificate of
insurance, especially, where, as here, the Plaintiff makes no allegation that it asked Fairmont for
information about when its policy became effective. See Murphy, 90 N.Y.2d at 271, 682 N.E.2d
972 (“In fact, there is no indication that [the plaintiff] ever inquired or discussed with [the
insurance broker] any issues involving the liability limits of the automobile policy. Such lack of
initiative or personal indifference cannot qualify as legally recognizable or justifiable reliance.”).
Indeed, the Plaintiff received a revised policy declaration from Foremost following the closing
noting that the effective date of its policy was November 2, 2012, and thus, there appear to have
been no need for Fairmont to correct the certificate of insurance. (Sklar Decl., Ex. D.)
Finally, even assuming that there was a duty on the part of Foremost to inform the
Plaintiff of the provision in the NFIP Manual impacting the effective date of the SFIP,
Fairmont’s purported breach of that duty did not cause Foremost and FEMA to deny coverage to
the Plaintiff. As described above, pursuant to the NFIP Manual, the Plaintiff’s flood insurance
policy could only become effective after the Plaintiff closed its mortgage with Westchester Bank
on the Island Park property. Fairmont, as a flood insurance broker, had no control over when the
Plaintiff’s loan with the Westchester Bank would close. Thus, the delay in coverage which
resulted in Foremost denying the Plaintiff’s claim cannot plausibly be attributed to any act of
Fairmont. Accordingly, the Court finds that the Plaintiff fails to state a negligence claim against
Fairmont. See GlobalNet Financial.Com, Inc., 449 F.3d at 388 (“[The plaintiff] is unable to
23
prevail on its claims because [the insurance broker] was not the cause of the cancellation of
coverage. The Financing Agreement between [the insurance carrier] and [insured], which [the
insurance broker] was not a party to, set forth [the carrier’s] right to cancel [the plaintiff’s]
coverage for non-payment of premiums in explicit terms . . . . It was [the plaintiff’s] negligence
that caused the cancellation of the insurance coverage.”).
F. As to Plaintiff’s Claim under New York Consumer Protection Law
NYGBL § 349 makes unlawful “[d]eceptive acts or practices in the conduct of any
business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus.
Law § 349 (McKinney). “To make out a prima facie case under Section 349, a plaintiff must
demonstrate that (1) the defendant’s deceptive acts were directed at consumers, (2) the acts are
misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v.
Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000) (citing Oswego Laborers' Local 214 Pension Fund
v. Marine Midland Bank, 85 N.Y.2d 20, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995)); see also In
re Scotts EZ Seed Litig., No. 12 CV 4727 (VB), 2013 WL 2303727, at *10 (S.D.N.Y. May 22,
2013) (same).
The Plaintiff does not provide any allegations that could plausibly establish the first
element of a NYGBL § 349 claim. ‘“To show consumer-oriented conduct, [the] [p]laintiff
would have to ‘demonstrate that the acts or practices [complained of] have a broader impact on
consumers at large.’” Vitolo v. Mentor H/S, Inc., 426 F. Supp. 2d 28, 34 (E.D.N.Y. 2006)
(quoting Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d
20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (N.Y. 1995); see also Securitron Magnalock Corp. v.
Schnabolk, 65 F.3d 256, 264 (2d Cir. 1995) (“It is clear that ‘the gravamen of the complaint must
24
be consumer injury or harm to the public interest.”’) (quoting Azby Brokerage, Inc. v. Allstate
Ins. Co., 681 F.Supp. 1084, 1089 n. 6 (S.D.N.Y. 1988)).
“‘The typical violation contemplated by the statute involves an individual consumer who
falls victim to misrepresentations made by a seller of consumer goods usually by way of false
and misleading advertising.’” Gottlieb Dev. LLC v. Paramount Pictures Corp., 590 F. Supp. 2d
625, 636 (S.D.N.Y. 2008) (quoting U2 Home Entm't, Inc. v. Hong Wei Int'l Trading, Inc., No. 04
Civ. 6189 (JFK), 2008 WL 3906889, at *18 (S.D.N.Y. Aug. 21, 2008)). Significantly, “[p]rivate
transactions not of a recurring nature or without ramifications for the general public do not fall
within the purview of section 349.” Id. (citing Netzer v. Continuity Graphic Assocs., 963 F.Supp.
1308, 1323 (S.D.N.Y. 1997)).
In the instant case, the Plaintiff has not alleged any facts that support the claim that it has
been harmed by Fairmont’s conduct, let alone that Fairmont has misled the public at large.
Accordingly, the Plaintiff’s claim under section 349 of the NYGBL is dismissed. See, e.g.,
Gottlieb Dev. LLC, 590 F. Supp. 2d at 637 (S.D.N.Y. 2008) (“[The plaintiff] has not alleged any
facts that support the claim that it has been harmed by [the defendant’s] conduct, much less to
support the proposition that the public at large has been misled. Although Gottlieb insists that
Paramount's conduct has ramifications for consumers at large, it has not furnished anything more
than conclusory and speculative allegations about how the public will be deceived as to the
affiliation or endorsement of its products. Accordingly, Gottlieb's claim under section 349 of the
New York General Business Law is dismissed.”); Vitolo v. Mentor H/S, Inc., 426 F. Supp. 2d
28, 34 (E.D.N.Y. 2006) aff'd, 213 F. App'x 16 (2d Cir. 2007) (dismissing section 349 claim
because “[t]he Complaint focuses almost entirely on the losses suffered by [the] [p]laintiff and
his business, rather than to consumers or [the] [p]laintiff’s patients.”).
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III. CONCLUSION
For the foregoing reasons, it is hereby ordered that the Fairmont’s motion is granted in its
entirety and the Plaintiff’s claims as to Fairmont are dismissed. Accordingly, the Plaintiff’s sole
remaining cause of action is a breach of contract claim against Foremost.
The Clerk of Court is directed to terminate Fairmont from this action and amend the
caption consistent with this Order.
SO ORDERED.
Dated: Central Islip, New York
February 11, 2015
_/s/ Arthur D. Spatt_____
ARTHUR D. SPATT
United States District Judge
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