Minasian et al v. IDS Property Casualty Insurance Company et al
Filing
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OPINION & ORDER re: 10 MOTION to Dismiss the second cause of action. filed by State Farm Fire and Casualty Company, 16 FIRST MOTION to Dismiss Punitive Damages. filed by IDS Property Casualty Insurance Company. Accordingly, defendants' motions to dismiss plaintiffs' GBL § 349 claim are GRANTED. The Clerk of Court is directed to close the motions at ECF Nos. 10 and 16. (Signed by Judge Katherine B. Forrest on 4/17/2015) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
NIKOLAI MINASIAN and HARUTYUN
:
MINASIAN,
:
:
Plaintiffs,
:
:
-v:
:
IDS PROPERTY CASUALTY INSURANCE
:
COMPANY d/b/a AMERIPRISE INSURANCE
:
COMPANY and STATE FARM FIRE AND
:
CASUALTY COMPANY,
:
:
Defendants.
:
X
---------------------------------------------------------------------KATHERINE B. FORREST, District Judge:
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: April 17, 2015
14-cv-10125 (KBF)
OPINION & ORDER
In the instant case, plaintiffs allege that their two insurers—IDS Property
Casualty Insurance Company (d/b/a Ameriprise Insurance Company) (“IDS”) and
State Farm Fire and Insurance Company (“State Farm”) have breached their
respective insurance contracts by failing to pay for losses incurred as a result of an
alleged burglary.
According to plaintiffs, among the stolen items were a gold diamond ring
valued at over $40,000, a gold Swiss watch valued at over $20,000 and a gold
diamond bracelet valued at over $30,000. Ameriprise denied the claim following an
investigation “contending that Plaintiffs failed to give notice of the Loss to
Ameriprise as soon as possible, that they [plaintiffs] intentionally lost [the] Jewelry
and/or because Plaintiffs made false statements or engaged in fraudulent conduct in
misrepresenting that [the] Jewelry was the subject of a loss by unknown persons.”
(ECF No. 1 (“Compl.”) ¶ 34.) Plaintiffs allege that after conducting an investigation,
State Farm has not accepted or rejected plaintiffs’ claim despite the passage of the
applicable time period for doing so under the insurance agreement. (Compl. ¶ 58.)
Plaintiffs have alleged breach of contract, violations of § 349 of New York’s
General Business Law (“GBL”) and § 2601 of New York’s Insurance Law.
Defendants have moved to dismiss only the GBL § 349 claim on the basis that
plaintiffs have failed to allege “consumer-oriented conduct” necessary to state such
a claim, as the action is merely one for breach of private contractual agreements.
The Court agrees and GRANTS the motions.
I.
GENERAL BUSINESS LAW § 349
As with any motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as
true all well pleaded factual allegations and draws all reasonable inferences in
plaintiffs’ favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007). The Court need not, however, accept conclusory legal or factual assertions.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Port Dock & Stone Corp. v. Oldcastle
Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007).
The parties agree on the governing legal standard and have cited many of the
same cases in their briefs on this motion. The first requirement of any action
pursuant to GBL § 349 is that the defendant’s alleged conduct be “consumeroriented.” Wilson v. NW Mut. Ins. Co., 625 F.3d 54, 64 (2d Cir. 2010). To be
“consumer-oriented,” conduct must have more than a private impact—it must have
“a broad impact on consumers at large.” Miller v. HSBC Bank USA, N.A., No. 13
Civ. 7500, 2015 U.S. Dist. LEXIS 16736, at *19 (S.D.N.Y. Feb. 10, 2015); N.Y. Univ.
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v. Cont’l Ins. Co., 87 N.Y.2d 308, 320 (N.Y. 1995). Conclusory statements that
conduct is consumer-oriented are insufficient. Lava Trading, Inc. v. Hartford Fore
Ins. Co., 326 F.Supp.2d 434, 438 (S.D.N.Y. 2004); see also Miller, 2015 U.S. Dist.
LEXIS 16736, at *19.
Plaintiffs’ allegations set forth a contractual disagreement as to whether
coverage for the noticed loss is required. There is nothing broadly consumeroriented about such a dispute—apart from the generalized fact that insurance
companies and insureds may frequently engage in coverage disputes. That fact
alone, however, does not transform a purely private issue into a consumer-oriented
one. Nor does the fact that plaintiffs make a wholly conclusory assertion that the
issuance of each policy “was a consumer oriented transaction.” (Compl. ¶¶ 39, 60.)
In short, this is precisely the kind of “private contractual dispute[] that
lack[s] the consumer impact necessary to state a claim pursuant to Section 349.”
DePasquale v. Allstate Ins. Co., 179 F. Supp. 2d 51, 62 (E.D.N.Y.), aff’d, 50 Fed.
App’x 475 (2d Cir. 2002). The GBL § 349 claims are therefore dismissed.
Accordingly, defendants’ motions to dismiss plaintiffs’ GBL § 349 claim are
GRANTED.
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The Clerk of Court is directed to close the motions at ECF Nos. 10 and 16.
SO ORDERED.
Dated:
New York, New York
April 17, 2015
KATHERINE B. FORREST
United States District Judge
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