DAVID JACOBER v. KULDEEP MADAN (2026)

.2025–02668

2025–04500

Sweetnam, Schuster, & Schwartz, LLC, New York (Jared S. Siegel of counsel), for appellants.

Mound Cotton Wollan & Greengrass LLP, New York (Kate Elizabeth DiGeronimo of counsel), for Kuldeep Madan, Eugene Peysakh, Madan & Associates, LLC, Barnum Financial Group, LLC and Brix Partners, respondents.

Stevens & Lee, P.C., New York (Kelley M. Brogan of counsel), for Massachussetts Mutual Life Insurance Company and MML Investors Services, LLC, respondents.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered March 31, 2025, which granted the motion of defendants Massachusetts Mutual Life Insurance Company and MML Investors Services, LLC (collectively, MassMutual) to dismiss the complaint as against them, unanimously affirmed, with costs.  Order, same court and Justice, entered July 14, 2025, which granted the motion of defendants Kuldeep Madan, Eugene Peysakh, Madan & Associates, LLC, Barnum Financial Group, LLC, and Brix Partners (collectively, the Brokers) to dismiss the complaint as against them, unanimously affirmed, with costs.

Plaintiffs allege that defendants engaged in deceptive practices to induce plaintiff David Jacober to purchase a $10 million life insurance policy and to use premium financing to acquire that policy.  Plaintiffs allege that David suffered more than $600,000 in damages due to defendants' material misrepresentations, omissions, and deceptive practices.  Plaintiffs commenced this suit alleging three causes of action:  violation of General Business Law § 349, fraudulent misrepresentation, and negligent misrepresentation against the Brokers directly and against MassMutual under the doctrine of respondeat superior.

Supreme Court properly dismissed the fraudulent misrepresentation cause of action against the Brokers.  The complaint did not state a cause of action, as it did not specify with sufficient particularity which statements came from which “Agents/Brokers,” a term the complaint defined to cover Madan, Peysakh, Madan and Associates, Barnum, and Brix (see INTL FCStone Mkts., LLC v. Corrib Oil Co. Ltd., 172 AD3d 492, 493 [1st Dept 2019];  CPLR 3016[b] ).  In any event, documentary evidence disclosing and warning of the risks associated with the policy “utterly refutes plaintiff's factual allegations and conclusively establishes a defense to the asserted claims as a matter of law” (Amsterdam Hospitality Group, LLC v Marshall–Alan Assoc., Inc., 120 AD3d 431, 433 [1st Dept 2014] [internal citation and quotation marks omitted];  see Champion Mtge. Co. v. Elmore, 5 AD3d 140, 140 [1st Dept 2004] ).  For the same reasons, the court properly dismissed the negligent misrepresentation cause of action (see Federal Ins. Co. v Lester Schwab Katz & Dwyer, LLP, 211 AD3d 527, 527–528 [1st Dept 2022];  Von Ancken v. 7 E. 14 L.L.C., 171 AD3d 440, 441 [1st Dept 2019], lv denied 33 NY3d 912 [2019] ).

The court also properly dismissed the cause of action for a violation of General Business Law § 349.  In the complaint, plaintiffs claim that the “Agents/Brokers” allegedly misrepresented the policy and alleged their damages suffered from purchasing the policy.  The allegations are “not consumer oriented, but rather ․ a single, private transaction” (J. Carey Smith 2019 Irrevocable Trust v 11 W. 12 Realty LLC, 240 AD3d 432, 436 [1st Dept 2025] [internal quotation marks omitted] ).  Additionally, both the complaint and documentary evidence show that the policy was tailored to select wealthy individuals, which is “not conduct which affects the consuming public at large,” nor is it “the ‘modest’ type of transaction the statute was primarily intended to reach” (New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 321 [1995];  see Denenberg v. Rosen, 71 AD3d 187, 194–195 [1st Dept 2010], lv dismissed 14 NY3d 910 [2010] ).

Accordingly, plaintiffs cannot establish vicarious liability against MassMutual under the doctrine of respondeat superior in light of our determination that the underlying claims against the Brokers were properly dismissed (see Moorhouse v. Standard, NY, 124 AD3d 1, 12 [1st Dept 2014] ).

We have considered plaintiffs' remaining arguments and find them unavailing.