The Supreme Court of New York (New York County) (Coin, J.) granted today the Firm’s motion to dismiss a nursing and home attendant firm’s complaint against our client , a national insurer, for failure to state a claim, and thirteen cross-claims brought by the estate of an insured alleging, inter alia, misrepresentation, breach of fiduciary duty, intentional infliction of distress and wrongful death. The Court agreed with each of the Firm’s arguments to dismiss the Complaint, including that CPLR 3211(d) does not afford a right of discovery to a plaintiff who fails to make a “sufficient start in showing that it may have a claim and that its position is not frivolous,” as well as the Firm’s arguments that were dispositive of the estate’s cross-claims. The Court agreed, inter alia, that the cross-claims were founded in contract and could not be considered a basis for tort given the absence “of a legal duty independent of the contract itself [having] been violated,” the contract did not create a fiduciary duty, and the estate did not allege “conduct so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency” to support an intentional infliction of emotional distress claim.
