Recitation, as required by CPLR §§2219(a) and/or 3212(b) of the Papers considered in review of this Motion: Papers EDDS #/Date Defendants’ Motion to Dismiss 8VSL66 8/25/22 Plaintiff’s Opposition 9/16/22 Defendants’ Reply to Opposition YEDUVC 9/29/22 DECISION/ORDER Upon the foregoing papers and virtual oral argument on October 24, 2022, pursuant to CPLR §§3211(a)(1) and (7), 3016(b), and General Business Law (GBL) §§349 and 396-r, the Decision and Order on Defendants’ Motion to Dismiss is determined as follows: Defendants’ motion is GRANTED. This action commenced on January 11, 2022 when Plaintiff filed a Summons with Endorsed Complaint alleging fraudulent and excessive charges seeking $50,000.00 in damages with interest from August 11, 2020. Defendants filed the instant Motion to Dismiss the Plaintiff’s Complaint pursuant to CPLR §§3016(b), 3211(a)(1) and 3211(a)(7)1. In his Verified Summons and Complaint, Plaintiff argues and/or demands: (1) “misrepresentation”; (2) “shop-around”; (3) “misconduct”; (4) “contract-termination”; (5) “exonerated”; and (6) “damages”. In opposition to the instant motion, the Plaintiff filed an Affidavit in Opposition to the instant motion expounding upon the facts and claims in his Verified Summons and Complaint. Although a Court may freely consider affidavits submitted by a Plaintiff to remedy any defects in the complaint, (see Rovello v. Orofino Realty Co., 40 NY2d 633, 635 [1976]), the information provided in the Plaintiff’s affidavit fails to state a cause of action and falls short in supporting a denial of the instant dismissal motion. Plaintiff’s pleading of (i) fraud; (ii) unjust enrichment; (iii) breach of contract; (iv) violation of GBL §349; and (v) violation of GBL §396-r simply amount to his dissatisfaction with the premium that Geico quoted and charged him in 2020 and lack legal merit. Pursuant to CPLR §3211(a)(7), failure to state a cause of action, warrants dismissal of this action. A pleading is to be afforded a liberal construction (Leon v. Martinez, 84 NY2d 83, 88 [1994]) and a court must accept the facts alleged therein to be true, affording a plaintiff the benefit of every favorable inference, and determine only whether the alleged facts fit within any cognizable theory. Id at 87-88. When evidentiary material is presented and considered, the criterion becomes whether the pleader has a cause of action rather than if one has been properly stated. Rovelo v. Orofino Realty Co., 40 NY2d at 635-636. “Whether a plaintiff can ultimately establish its allegations is not part of the calculus.” EBCI, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19 (2005). “The sole criterion is whether from the complaint’s four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law…However, while the allegations in the complaint are to be accepted as true when considering a motion to dismiss, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration.” Dinerman v. Jewish Bd. Of Family & Children’s Servs, Inc., 55 A.D.3d 530, 531 (2nd Dep’t 2008) (quoting Garber v. Board of Trustees of State of Univ. of NY, 38 A.D.3d 833 [2nd Dep't 2007]). A motion to dismiss pursuant to CPLR §3211(a)(1), premised on the ground that a defense is founded upon documentary evidence requires a showing that this evidence refutes Plaintiff’s allegations, conclusively establishing a defense as a matter of law. Leon v. Martinez, 84 NY2d at 88; see also Goshen v. Mutual Life Ins. Co. of New York, 98 NY2d 314, 326 (2002). Defendants produced the policy quote history, as well as Plaintiff’s insurance policy and his acceptance thereof in a response letter dated May 16, 2022 to a NYS Department of Financial Services (DFS) inquiry. As it is well settled that insurance policies constitute documentary evidence. Ralex Servs., Inc. v. Southwest Marine & General Ins. Co., 155 A.D.3rd 800, 801-802 (2nd Dep’t 2017); Nisari v. Ramjohn, 85 A.D.3d 987, 990 (2nd Dep’t 2011); GuideOne Specialty Ins. Co. v. Admiral Ins. Co., 57 A.D.3rd (2nd Dep’t 2008); Randazzo v. Gerver Life Ins. Co., 3 A.D.3d (2nd Dep’t 2004), the documents provided by Defendants refute Plaintiff’s claims. Here, even if construing Plaintiff’s pleadings liberally and accepting them as true, they state no cognizable legal claim against Defendants. Plaintiff failed to allege any misrepresentation or material omission of fact by Defendants. Additionally, Plaintiff failed to offer any of the prerequisites necessary (acts or practices by the defendant that are “consumer-oriented, that such acts are deceptive or misleading in a material manner and plaintiff has been injured by reason of such acts) to sustain a violation under GBL §349 and instead provided conclusory allegations of alleged deceptive acts (Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2nd 330, 343-44 (1999). Defendants’ motion is Granted in its entirety and the matter is dismissed with prejudice. This constitutes the Decision and Order of the Court. Date: December 30, 2022
