United States Second Circuit

In a breach of contract class action involving homeowner-s insurance premiums, district court's grant of defendant's motion to dismiss is reversed where: 1) the court properly dismissed his claim under New York Insurance Law sec. 3425.5 as the conditional notice requirements of the statute were not triggered; 2) the court erred in dismissing plaintiff's breach of contract action as defendant's explanation for the increase in his coverage amounts and premiums does not resolve the ambiguity of the terms in the policy and does not adequately refute plaintiff's claim that the increases were not based on current costs and values, and thus plaintiff has met the standard necessary to resist the motion to dismiss; 3) the voluntary payment doctrine cannot stand as an alternate basis for dismissal of plaintiff's claim; and 4) the court properly dismissed plaintiff's deceptive business practices claim under New York General Business Law sec. 349 as plaintiff failed to plead a sufficient injury under the statute.

Appellate Information

• Decided 07/28/2009
• Published 07/28/2009

Judges

• JOHN R. GIBSON, Circuit Judge., Before WALKER, KATZMANN, and JOHN R. GIBSON, Circuit Judges.

Court

• United States Second Circuit

Counsel

• For Appellant:
  
• Roger W. Kirby (David Kovel, on the brief), Kirby McInerney & Squire, LLP, Kenneth Elan, Harold Edgar, New York, NY, of counsel, for Plaintiff-Appellant.


• For Appellees:
  
• Keara M. Gordon, (Joseph G. Finnerty III, Sara Z. Moghadam, on the brief), DLA Piper U.S. LLP, New York, N.Y. and Washington, DC, for Defendants-Appellees.