LITVINOV v. Jack Foy and New York Central Mutual Fire Insurance Company, Defendants-Appellants. (2006)

Plaintiff commenced this lawsuit asserting causes of action for, inter alia, rescission of a release, fraud in the procurement of that release, and unfair claim settlement practices.   As a preliminary matter, we note that, in evaluating defendants' motion to dismiss the complaint against Jack Foy and New York Central Mutual Fire Insurance Company (collectively, defendants), we have not considered any new arguments, grounds, or evidence advanced by defendants in their reply submissions (see Watts v. Champion Home Bldrs. Co., 15 A.D.3d 850, 851, 789 N.Y.S.2d 573;  cf. Kennelly v. Mobius Realty Holdings LLC, 33 A.D.3d 380, 822 N.Y.S.2d 264).   Within that framework, we conclude that defendants have failed to establish that the fifth and sixth causes of action do not state a cause of action against them, and have thus failed to establish that dismissal of those causes of action is warranted under CPLR 3211(a)(7) (see Watts, 15 A.D.3d at 851, 789 N.Y.S.2d 573).   We agree with defendants, however, that Supreme Court should have dismissed the seventh cause of action, inasmuch as it is premised on a regulation promulgated under Insurance Law § 2601, which itself does not give rise to a private cause of action (see Rocanova v. Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603, 614, 612 N.Y.S.2d 339, 634 N.E.2d 940;  Zawahir v. Berkshire Life Ins. Co., 22 A.D.3d 841, 842, 804 N.Y.S.2d 405).   We therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the seventh cause of action and as modified the order is affirmed without costs.

MEMORANDUM: