Bristol Harbour Associates, L.P. v. Home Insurance

Lawton, J. P. (dissenting).

I respectfully dissent. Plaintiffs in this action seek a declaration that they are entitled to recover more than $600,000 in damages for the alleged mysterious disappearance of works of Native American art under an “all risk” policy issued by defendant. Defendant in its answer asserted that it had properly denied coverage because there was no loss within the meaning of the policy or, if such a loss did occur, because the loss occurred outside the territorial limits of the policy. In response to defendant’s motion to strike certain allegations in the complaint as irrelevant, plaintiffs cross-moved to amend the complaint to include a second cause of action under General Business Law § 349. Supreme Court erred in denying the motion and granting the cross motion. Because this action involves a coverage dispute between an insurer and its insured, it is “essentially a ‘private’ contract dispute over policy coverage and the processing of a claim which is unique to [the] parties, [and] not conduct which affects the consuming public at large” (New York Univ. v Continental Ins. Co., 87 NY2d 308, 321). Consequently, it cannot form a basis for a cause of action under General Business Law § 349 (see, New York Univ. v Continental Ins. Co., supra, at 320-321). Additionally, plaintiffs’ allegation that defendant violated Insurance Law § 2601 does not support a separate cause of action and is irrelevant to the cause of action to recover an alleged loss under the policy (see, Rocanova v Equitable Life Assur. Socy., 83 NY2d 603, 614-615; see also, New York Univ. v Continental Ins. Co., supra, at 317-318). Thus, the court also erred in denying defendant’s motion to strike allegations in the complaint. (Appeal from Order of Supreme Court, Ontario County, Harvey, J.—Amend Pleading.) Present—Lawton, J. P., Hayes, Wisner, Boehm and Fallon, JJ.