Papers Numbered Defendant’s Motion to Dismiss and Affirmation, Exhibits Annexed 1 Plaintiff’s Affirmation in Opposition 2 Defendant’s Affirmation in Reply to Plaintiff’s Opposition 3 DECISION AND ORDER Upon the foregoing cited papers, and oral argument, the Decision/Order on the motions are as follows: PROCEDURAL HISTORY This action was commenced on or about February 15, 2023 by Richard Epstein (hereinafter “Plaintiff”) with the filing of the Summons and Complaint against Geico Insurance Company (hereinafter “Defendant”). The matter was joined upon the filing of Defendant’s Answer on March 27, 2023. On May 11, 2023, Defendant filed a Motion to Dismiss. Specifically, the Defendant filed a Motion to Dismiss pursuant to CPLR §3211(a)(7), alleging that Plaintiff failed to state a cause of action. Defendant opposes said motion. The parties appeared before Your Honor on June 12, 2023. After brief oral argument, the motions were taken on submission. DISCUSSION Defendant’s Motion to Dismiss is granted and Plaintiff’s Complaint is hereby dismissed. Plaintiff Fails to State a Cause of Action Defendant brings the instant Motion to Dismiss pursuant to CPLR §3211(a)(7). Defendant argues that Plaintiff failed to state a cause of action in his Complaint. Specifically, Defendant argues that although Plaintiff pleads the facts of a motor vehicle accident in his Complaint and indicates that an offer was made by Defendant and rejected as insufficient by the Plaintiff, Plaintiff ultimately fails to state any legal theory of liability by showing how Defendant, an insurance company, is liable for any alleged damages sustained. Defendant contends that Plaintiff brought this action against the incorrect party as Plaintiff does not have any insurance policy or contract with Defendant and thus, no duty to the Plaintiff. Defendant states that a contract exists between the Defendant and the Moscas, the driver and owner of the vehicle that allegedly caused damage to Plaintiff. Defendant states that it is honoring that contract by extending an offer despite the difference in opinion of the valuation of the damage. Plaintiff opposes said Motion to Dismiss. In his motion, Plaintiff states that his son was involved in a motor vehicle accident with another vehicle that is owned by the Mosca family on October 21, 2022 in Staten Island, New York and his vehicle was severely damaged. Plaintiff also alleges suffering whiplash. The Court notes that the Complaint makes no mention of any bodily injury or that Plaintiff’s son was involved in the matter. Plaintiff acknowledges that Defendant is the insurance carrier for the individual involved in the accident and alleges that he was offered $9, 844.05 to settle the claim by the Defendant. Plaintiff explains that his claim is for $24, 000.00 is for breach of duty by the Defendant for Defendant’s alleged failure to investigate and undertake to pay any and all claims or settle any and all lawsuits up to the limit of the policy in accordance with public policy in New York State and the terms of Defendant’s insurance policy. Plaintiff provides no explanation as to why that theory was not included in the plain language of the Complaint. Pursuant to CPLR §3211(a)(7), a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action. In a motion to dismiss based on a failure to state a cause of action, the pleading must be liberally construed, accepting all the facts as alleged in the pleading to be true and provide the plaintiff with the benefit of every possible inference. If plaintiff is entitled to relief on any reasonable view of the facts, the complaint if legally sufficient. Aristy-Farer v. State of New York, 29 N.Y.3d 501, 509 (2017); Mandarin Trading Ltd. V. Wildstein, 16 N.Y.3d 173, 178 (2011); Avgush v. Town of Yorktown, 303 A.D.2d 340, 341 (2d. Dep’t 2003); Smith v. Scott, 294 A.D.2d 11, 13 (2d. Dep’t 2002). Dismissal of the complaint is appropriate where the plaintiff fails to assert facts supporting an element of the claim. Defects in the complaint may be remedied by evidentiary material submitted by the plaintiff in opposition to the motion to dismiss. Pierce Coach Line, Inc. v. Port Wash, Union Free Sch. Dist., 213 A.D.3d 959, 960 (2d. Dep’t 2023); NFA Group v. Lotus Research, Inc., 180 A.D.3d 1060, 1061 (2d. Dep’t 2020). The elements of a breach of contract are: the existence of a contract, plaintiff’s performance under that contract, defendants breach, and damages. The plaintiff must identify the element of the contract that is breached. Pierce v. Coach Line, Inc. v. Port Wash, Union Free Sch. Dist., 213 A.D.3d 959, 960 (2d. Dep’t 2023); R. Vig Props., LLC v. Rahimzada, 213 A.D.3d 871, 873 (2d. Dep’t 2023); LMEG Wireless, LLC v. Farro, 190 A.D.3d 716, 718 (2d. Dep’t 2021) To make a determination as to whether Plaintiff stated a cause of action, the Court must first look to the plain text of the Complaint and determine if the Plaintiff pleads facts that fit any cognizable legal theory. A plain reading demonstrates that much of Plaintiff’s Complaint discusses a motor vehicle accident and the damage sustained to the vehicle.1 The Complaint proceeds to state that Defendant, as insurance carrier for the other motorist, accepted full liability for the accident and had offered $9, 844.05 to settle the claim. Plaintiff’s Complaint states that this offer was insufficient and unfair. Plaintiff then requests $24,000.00 plus costs to cover the loss of his vehicle and the replacement cost for another vehicle. While the facts alleged in Plaintiff’s Complaint are clear regarding the amount he is requesting and the facts of a motor vehicle accident, under no liberal reading of the Complaint does Plaintiff state what duty the Defendant allegedly breached or any damages resulting from an alleged breach. Other than a mere assertion that an offer was made and that the offer was insufficient, Plaintiff makes no connection to Defendant’s involvement in the matter or any liability it could potentially hold as a result of its actions. Although his motion and oral argument accuse the Defendant of breaching a duty by failing to investigate a claim fully and make a proper offer, the Complaint doesn’t mention that whatsoever. Plaintiff argues that the Defendant’s insurance policy, which he does not attach as documentary evidence, is based on New York law and public policy, demands a full investigation and settlement. The Complaint is mute on that point. The Court is not willing to make any leap to a conclusion of what the Plaintiff’s cause of action is against the Defendant. Despite failing to specifically or generally allege a breach of duty to the Plaintiff in his Complaint, Plaintiff argues in his opposition that Defendant did in fact breach a duty. This motion fails to persuade the Court that there is any cause of action and fails to cure the defective Complaint. Even by giving Plaintiff the benefit of every possible inference, Plaintiff fails to show how the Defendant breached any duty by making a settlement offer that was rejected. Plaintiff is missing at least two key elements of a claim for breach of duty/contract: breach and damage. Plaintiff didn’t accept the offer. Thus, Plaintiff is not in any worse position that he was before. Using Plaintiff’s rationale for what constitutes a cause of action in this case, anyone who gets into a motor vehicle accident should forgo bringing an action against the other motorist and instead, negotiate with the insurance company. If they don’t like the settlement offer, then bring a lawsuit against the insurance company for breach of duty and broadly allege that the insurance company is not doing its job. In terms of public policy, using Plaintiff’s line of reasoning, no one would ever bring suit against another motorist in a motor vehicle accident. Moreover, no one would ever settle for anything less than the policy limit as insurance companies would be extorted into making the difficult choice of offering the maximum policy limit or risk facing suit themselves for breach of duty. Here, the Plaintiff plainly argues in sum and substance that the Mosca’s policy with the Defendant states that Defendant is “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of…”. Plaintiff further extracts excerpts of the policy that state A) bodily injury and B) arising out of ownership or use of the owned automobile…and the company shall defend suit…and seek damages even if any of the allegations of the suit are groundless, false or fraudulent, but the company may make such investigation and settlement of any claim or suit it deems expedient. Again, using Plaintiff’s rationale, any fraudulent claim based on a staged accident would require an immediate payout to the fraudster or an investigation that the fraudster would deem insufficient if not in their favor. Plaintiff relies on a case from the Supreme Court, Clinton County, Duprey v. Security Mut. Casualty Co., 43 Misc. 2d 811 (Sup. Ct., Clinton County 1964). At the trial level, the Supreme Court of Clinton County held that the insurance company contract imposes no duty on the insurance carrier to settle a claim or lawsuit. This was ultimately overturned by the Third Department. There are many distinctions between the case at bar and Duprey. First, Duprey involved the payment of a post verdict judgment. In Duprey, the defendant settled the matter with one party to the detriment of the plaintiff who had received a verdict judgment. Essentially there was not enough money in the policy to pay the plaintiff their verdict amount. The cornerstone of the Duprey decision was “bad faith” in the settlement of the claim. Here, there has been no trial, no settlement, and no verdict. Plaintiff has not shown any facts that indicate that anything was done by the Defendant in bad faith and ultimately relied upon by Plaintiff that damages Plaintiff in any way. For these reasons, the Defendant’s Motion to Dismiss pursuant to CPLR §3211(a)(7) is granted and Plaintiff’s Complaint is hereby dismissed. This constitutes the final Decision and Order of the Court. Dated: July 7, 2023
