Erk v. Health Now New York, Inc. , 751 N.Y.S.2d 914 ( 2002 )

—Appeal from so much of an order of Supreme Court, Erie County (Makowski, J.), entered February 15, 2002, that denied defendants’ motion seeking partial summary judgment dismissing the first three causes of action in the second amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied defendants’ motion seeking partial summary judgment dismissing the first three causes of action in the second amended complaint, for breach of contract and breach of the implied covenants of good faith and fair dealing. As the court properly determined, plaintiffs raised issues of fact with respect to the terms of the parties’ contract sufficient to defeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Although defendants contend that the court erred in failing to dismiss the complaint to the extent that it asserts the violation of Insurance Law § 3224-a because there is no private right of action under that section, plaintiffs contend that they are not asserting a private right of action under that section. We therefore decline to review defendants’ contention. Present— Pine, J.P., Hayes, Scudder, Kehoe and Lawton, JJ.