GOLUB v. TANENBAUM HARBER CO INC

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Supreme Court, Appellate Division, First Department, New York.

Aaron Richard GOLUB, Plaintiff–Appellant, v. TANENBAUM–HARBER CO., INC., Defendant–Respondent.

Decided: October 27, 2011

ANDRIAS, J.P., SWEENY, ACOSTA, FREEDMAN, MANZANET–DANIELS, JJ. David Lu, New York, for appellant. Rubin, Fiorella & Friedman LLP, New York (Mandie R. Forman of counsel), for respondent.

Order, Supreme Court, New York County (Louis B. York, J.), entered November 16, 2010, which granted defendant's motion to dismiss the complaint, and denied plaintiff's cross motion to amend the complaint, unanimously affirmed, with costs.

Supreme Court properly granted the motion to dismiss the complaint.   Affording the complaint a liberal construction and according plaintiff the benefit of every possible inference, as we must (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), we find that plaintiff failed to sufficiently plead causes of action for fraudulent inducement, unjust enrichment and violation of GBL § 349.

 Plaintiff's claims for fraudulent inducement are based on defendant's alleged failure to provide plaintiff with certain information relating to the insurance policies it was offering.   However, an omission does not constitute fraud unless there is a fiduciary or “special” relationship between the parties (Eurycleia Partners, LP v. Seward & Kissel, LLP, 46 A.D.3d 400, 402, 849 N.Y.S.2d 510 [2007], affd. 12 N.Y.3d 553, 883 N.Y.S.2d 147, 910 N.E.2d 976 [2009] ) and plaintiff did not allege in the original complaint the existence of a fiduciary relationship or special relationship which would give rise to a duty to disclose.   In any event, “an insurance agent has a common-law duty to obtain requested coverage, but generally not a continuing duty to advise, guide or direct a client based on a special relationship of trust and confidence” (Chase Scientific Research v. NIA Group, 96 N.Y.2d 20, 30, 725 N.Y.S.2d 592, 749 N.E.2d 161 [2001];  see also Murphy v. Kuhn, 90 N.Y.2d 266, 270, 660 N.Y.S.2d 371, 682 N.E.2d 972 [1997] ).

 In addition, with regard to plaintiff's Long Island property, the documentary evidence established that plaintiff affirmatively requested wind coverage in his homeowners' insurance applications from 2005 through 2008, and did not decide to forego such coverage until 2009, at which time defendant had him complete an application declining such coverage despite the proximity of his LI property to the water.   At that time, he was given a policy without wind coverage.   Of course, plaintiff is “presumed to have read and understood his policy” (see McGarr v. Guardian Life Ins. Co. of Am., 19 A.D.3d 254, 256, 799 N.Y.S.2d 19 [2005] ), and thus the documentary evidence defeats the claim that plaintiff did not know the policy included wind coverage or that he was fraudulently induced into agreeing to wind coverage.

As for plaintiff's claim under GBL § 349, he failed to allege in the complaint the type of conduct that would have a broad impact on consumers at large (see Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 [1995] ) and his conclusory allegations about defendant's practices with other clients are insufficient to save the claim (see Northwestern Mut. Life Ins. Co. v. Wender, 940 F.Supp. 62, 65 [S.D.N.Y.1996] ).   The unjust enrichment claim was also properly dismissed, as it was merely based on the three previous claims, each of which failed to state a cause of action.

Supreme Court also properly denied the cross motion for leave to amend the complaint, as the proposed amendments were plainly lacking in merit (see Sharon Ava & Co. v. Olympic Tower Assoc., 259 A.D.2d 315, 686 N.Y.S.2d 422 [1999] ).   First, there is no merit to the proposed amendment to the unjust enrichment claim based on Insurance Law § 2123, which does not apply to the homeowners' insurance policies at issue.   Nor is there any merit to plaintiff's proposed breach of fiduciary duty claims or his proposed changes to his fraudulent inducement claims, since defendant had no fiduciary duty or special relationship with plaintiff.

 The proposed breach of contract claims are barred by the parol evidence rule, since the terms of the insurance contract and applications here are unambiguous (see R/S Assoc. v. New York Job Dev. Auth., 98 N.Y.2d 29, 33, 744 N.Y.S.2d 358, 771 N.E.2d 240 [2002] ).   In addition, plaintiff erroneously suggests that a contract was formed when he requested that defendant procure the least expensive policies.   Indeed, when plaintiff requested that defendant procure insurance quotes, he was submitting a request for an offer, which cannot be the basis for a enforceable contract since a further act was required in order for the contract to take effect (see Farago Adv., Inc. v. Hollinger Intl., Inc., 157 F.Supp.2d 252, 258 [S.D.N.Y.2001] ).

We have considered plaintiff's remaining arguments and find them unavailing.