BRISTOL HARBOUR ASSOCIATES v. HOME INSURANCE COMPANY (1997)

 Supreme Court properly granted plaintiffs' cross motion to serve an amended complaint (see, CPLR 3025[b];  Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164).  Contrary to defendant's contention, plaintiffs did not seek to add a separate cause of action alleging a violation of Insurance Law § 2601 but, rather, sought to amplify their cause of action for breach of contract with allegations of such a violation (see, New York University v. Continental Ins. Co., 87 N.Y.2d 308, 317-318, 639 N.Y.S.2d 283, 662 N.E.2d 763).   Further, the court did not abuse its discretion in permitting plaintiffs to assert a cause of action pursuant to General Business Law § 349 (see, Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25-26, 623 N.Y.S.2d 529, 647 N.E.2d 741).   In opposing the motion, defendant's only assertion of prejudice was based upon the new demand for punitive damages.   Plaintiffs, however, seek punitive damages only “as provided for by General Business Law § 349(h).”  Pursuant to that section, the court may in its discretion award treble damages based upon proof of defendant's willful or knowing violation of the statute, but the award of damages may not exceed $1,000 (see, General Business Law § 349[h];  Hart v. Moore, 155 Misc.2d 203, 207, 587 N.Y.S.2d 477).

 Further, the court did not abuse its discretion in denying defendant's motion to strike certain allegations from the initial complaint (see, CPLR 3024[b] );  those allegations are relevant to the causes of action in the amended complaint.

Order affirmed without costs.

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 N.Y.2d 308, 321, 639 N.Y.S.2d 283, 662 N.E.2d 763).   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, 639 N.Y.S.2d 283, 662 N.E.2d 763).   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. of U.S., 83 N.Y.2d 603, 614-615, 612 N.Y.S.2d 339, 634 N.E.2d 940;  see also, New York Univ. v Continental Ins. Co., supra, at 317-318, 639 N.Y.S.2d 283, 662 N.E.2d 763).   Thus, the court also erred in denying defendant's motion to strike allegations in the complaint.

MEMORANDUM: