HOBISH v. AXA EQUITABLE LIFE INSURANCE COMPANY (2019)

Order, Supreme Court, New York County (Andrea Masley, J.), entered on or about February 8, 2018, which, to the extent appealed from, denied defendant's motion to dismiss plaintiffs' General Business Law § 349 claim, unanimously affirmed, without costs.

The complaint sufficiently alleges that defendant's purported deceptive conduct, allegedly misleading elderly consumers into believing that they would not be targeted for premium increases, and subsequently substantially increasing such premiums, impacted plaintiff Toby Hobish's estate planning by forcing her to surrender the face value of the policy purchased from defendant.  This injury is distinct from injuries sustained by her trust, and thus sufficient to confer standing upon her to assert a General Business Law § 349 claim (see North State Autobahn, Inc. v. Progressive Ins. Group. Co., 102 A.D.3d 5, 16, 953 N.Y.S.2d 96 [2d Dept. 2012] ).

Given that plaintiff has alleged both a monetary loss stemming from defendant's deceptive practices and an independent loss derived from defendant's failure to deliver contracted for services, we agree with the motion court that the General Business Law claim is not duplicative of plaintiffs' breach of contract claim.

The complaint also sufficiently alleges deception.  It contends that the policy at issue does not define the term “a given class,” the group for which defendant is contractually permitted to raise insurance rates.  It also asserts that the policy does not address whether, when, or how an insured person can be reclassified.  Finally, it asserts that defendant targeted elderly individuals and raised their premiums to a degree that they were forced to surrender their insurance.  Such collective conduct meets the standard for deception, because the insurer's acts were “likely to mislead a reasonable consumer acting reasonably under the circumstances” (Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 [1995];  see Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330, 344, 704 N.Y.S.2d 177, 725 N.E.2d 598 [1999] ).