ALEXANDER v. GEICO INSURANCE COMPANY (2006)

Appeal from an order of the Supreme Court (Dawson, J.), entered November 18, 2005 in Clinton County, which, inter alia, partially granted defendant's cross motion to dismiss the complaint.

Plaintiff was injured in an April 2002 automobile accident for which she received no-fault benefits from defendant, her automobile insurance carrier.¹  At some point thereafter, however, defendant refused to cover certain treatments prompting plaintiff to commence this action.   In addition to asserting a breach of contract claim against defendant, plaintiff asserted causes of action sounding in bad faith and tort (with a concomitant request for punitive damages).   At issue is an order of Supreme Court which, among other things, dismissed the bad faith and tort causes of action.   We now affirm.

 Construing the complaint in the liberal light to which it is entitled on a motion to dismiss (see CPLR 3211[a];  Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), we nevertheless conclude that the causes of action sounding in tort and bad faith were not properly stated.   The essence of plaintiff's dispute with defendant is the latter's breach of contract in failing to provide her with continued no-fault benefits following her accident.   Plaintiff has failed to allege or demonstrate the creation of a relationship or duty between herself and defendant separate from this contractual obligation;  therefore, no independent tort claim lies (see New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 319-320, 639 N.Y.S.2d 283, 662 N.E.2d 763 [1995];  Logan v. Empire Blue Cross & Blue Shield, 275 A.D.2d 187, 192-193, 714 N.Y.S.2d 119 [2000], lv. dismissed 96 N.Y.2d 823, 729 N.Y.S.2d 443, 754 N.E.2d 203 [2001] ).   Moreover, no separate cause of action exists in tort for an insured's alleged bad faith in failing to perform its contractual obligations (see New York Univ. v. Continental Ins. Co., supra;  Zawahir v. Berkshire Life Ins. Co., 22 A.D.3d 841, 842, 804 N.Y.S.2d 405 [2005];  Royal Indem. Co. v. Salomon Smith Barney, 308 A.D.2d 349, 350, 764 N.Y.S.2d 187 [2003];  Bettan v. Geico Gen. Ins. Co., 296 A.D.2d 469, 470, 745 N.Y.S.2d 545 [2002], lv. dismissed 99 N.Y.2d 552, 754 N.Y.S.2d 204, 784 N.E.2d 77 [2002] ).   Thus, the bad faith claim was also properly dismissed.

 To the extent that plaintiff also sought punitive damages in her complaint, such demands were also properly dismissed because there is no basis for determining that defendant's conduct constitutes a tort independent of the contract (see New York Univ. v. Continental Ins. Co., supra at 316-317, 639 N.Y.S.2d 283, 662 N.E.2d 763;  Logan v. Empire Blue Cross & Blue Shield, supra at 194, 714 N.Y.S.2d 119) and because her allegations do not demonstrate that defendant, in dealing with the general public, engaged in egregious or fraudulent conduct evincing “such wanton dishonesty as to imply a criminal indifference to civil obligations” (New York Univ. v. Continental Ins. Co., supra at 316, 639 N.Y.S.2d 283, 662 N.E.2d 763 [internal quotation marks and citations omitted];  accord Rocanova v. Equit. Life Assur. Socy. of U.S., 83 N.Y.2d 603, 613, 612 N.Y.S.2d 339, 634 N.E.2d 940 [1994];  see Varveris v. Hermitage Ins. Co., 24 A.D.3d 537, 538, 806 N.Y.S.2d 688 [2005];  Sweazey v. Merchants Mut. Ins. Co., 169 A.D.2d 43, 46, 571 N.Y.S.2d 131 [1991], lv. dismissed 78 N.Y.2d 1072, 576 N.Y.S.2d 221, 582 N.E.2d 604 [1991];  Hebert v. State Farm Mut. Auto. Ins. Co., 124 A.D.2d 958, 959, 508 N.Y.S.2d 710 [1986], lv. dismissed 69 N.Y.2d 1038, 517 N.Y.S.2d 1030, 511 N.E.2d 89 [1987];  Korona v. State Wide Ins. Co., 122 A.D.2d 120, 121, 504 N.Y.S.2d 514 [1986] ).

To the extent preserved, plaintiff's remaining contentions have been reviewed and rejected, including the claim that the driver of the vehicle should have been added as a party.

ORDERED that the order is affirmed, with costs.

FOOTNOTES

1.   Plaintiff was not driving her vehicle at the time of the accident but rather was a front-seat passenger.

CARPINELLO, J.

CARDONA, P.J., SPAIN, ROSE and LAHTINEN, JJ., concur.