Decided on September 27, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on September 20, 2019

744329/16

Attorney for Plaintiff
Oleg Rybak, Esq.
The Rybak Firm, PLLC
1810 Voorhies Ave., 3rd Floor, Ste. 7
Brooklyn, NY 11235
(718) 975-2035

Attorney for Defendant
Katherine A. Hazelton, Esq.
Law Office of Goldstein & Flecker
2 Huntington Quadrangle, Ste. 2N01
Melville, NY 11747
(516) 714-7927

The court’s Decision and Order is based upon consideration of the following papers:

NOTICE OF MOTION & AFFIDAVITS ANNEXED 1

OPPOSITION/CROSS-MOTION 2

REPLY/OPPOSITION TO CROSS-MOTION 3

SUR REPLY

This is an action by Plaintiff medical provider to recover assigned first-party no-fault benefits for treatment provided to its assignor, David Cenevil (Injured Party). Plaintiff argues that it met its prima facie burden and requests that summary judgment be granted in its favor pursuant to CPLR 3212. Defendant opposes Plaintiff’s motion and cross moves for dismissal on grounds that the injuries were the result of an intentional assault when the insured, Bernard Foy (Insured), used his vehicle as a weapon to deliberately strike the Injured Party. Accordingly, Defendant asserts that the Injured Party’s injuries were not the result of an accident, but an intentional act which is not a covered loss under 11 N.Y.C.R.R. § 65-2.2(a). This court agrees.

In New York, an insurer must provide no-fault insurance benefits for injuries resulting from an accident. 11 N.Y.C.R.R. § 65-2.2(a), requires coverage for “personal injuries caused by an accident arising out of the use or operation of a motor vehicle” (emphasis added). In order for an insurer to be relieved of its obligation to cover a loss, it must come forward with evidence to demonstrate that the injuries were a result of an intentional or deliberate action (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d 349 [2011]; Liberty Mut. Ins. Co. v. Goddard, 29 AD3d 698 [2d Dept. 2006]). An insurer must establish its “founded belief” that the incident was an intentional act by a preponderance of the evidence (A.B. Med. Services PLLC v. Eagle Ins. Co., 3 Misc 3d 8, 9 [2d Dept. 2003]; V.S. Med. Servs., P.C. v. Allstate Ins. Co., 25 Misc 3d 39 [2d Dept. 2009]), and can meet its burden with circumstantial evidence (State Farm Mut. Auto. Ins. Co., v. Laguerre, 305 AD2d 490 [2d Dept. 2003]).

Here, Defendant has met its burden through substantial documentary evidence including a police accident report, a criminal complaint an arrest report and an affidavit from Defendant’s Special Investigation Unit (SIU) investigator Doug Pfleging. These documents consistently support a clear finding that the incident which lead to the Injured Party’s injuries was a result of an intentional act. According to the police accident report, the Insured deliberately hit the Injured Party with his vehicle: “At TPO witness stated that deft had a verbal dispute with his step son [sic]. Witness stated that deft (step father) used his vehicle to hit c/v and fled the accident scene” (Deft. Exh. B). Pursuant to the arrest report, the Insured was subsequently arrested on several charges including felony assault with intent to cause serious physical injury and felony assault for using his vehicle as a weapon (Deft. Exh. C).

In New York, to determine whether an event was accidental “it is customary to look at the casualty from the point of view of the insured, to see whether or not it was unexpected, unusual and unforeseen'” (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d at 355 quoting Miller v. Continental Ins. Co., 40 NY2d 675, 677 [1976]). The view point of the injured party is not considered “[b]ecause an injury is always fortuitous to a non-consenting victim” (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d at 355 quoting Michaels v. City of Buffalo, 85 NY2d [*2]754, 759 [1995]). The same is true when the injured party seeks benefits under the policy’s uninsured motorist endorsement (Castillo v. Motor Vehicle Indemnification Corp., 161 AD3d 937 [2d Dept. 2018]; Utica Mut. Ins. Co. v. Burrous, 121 AD3d 910 [2d Dept. 2014]). Here, both the witness’ statement and the testimony from the Injured Party are consistent with a finding that from the Insured’s perspective, the incident was a deliberate act meant to cause injury (Deft. Exh. D; see generally McCarthy v. Motor Vehicle Indemnification Corp., 12 NY2d 922 [1963]).

Plaintiff’s arguments concerning its prima facie case and timely denial of the claims are irrelevant. Defendant insurer “is not precluded, despite untimely disclaimer, from raising as a defense its denial of liability on the ground that the services rendered to treat the injuries at issue did not arise from a covered accident” (General Hospital v. Chubb Group of Insurance Companies, 90 NY2d 195, 201 [1997]). Furthermore, Defendant’s “strict compliance with the time requirements of both statute and regulations may be obviated and the preclusion remedy rendered unavailable when denial of claims is premised on a lack of coverage” (General Hospital v. Chubb Group of Insurance Companies, 90 NY2d at199).

Based on the foregoing, Plaintiff’s motion for summary judgment is denied. Defendant’s cross motion to dismiss is granted.

This constitutes the decision and order of this court.

September 4, 2019
Brooklyn, NY
ENTER.
__________________________________
CONSUELO MALLAFRE-MELENDEZ
Judge, Civil Court

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered August 31, 2018, which denied the petition to vacate a master arbitrator’s award, unanimously reversed, on the law, without costs, and the petition granted.

The master arbitrator’s award was arbitrary because it irrationally ignored the controlling law that the no-fault policy issued by petitioner was void ab initio due to respondent’s assignor’s failure to attend duly scheduled independent medical exams (see Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018]; Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]; American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]). Concur—Sweeny, J.P., Renwick, Manzanet-Daniels, Tom, Oing, JJ.

The Rybak Firm, PLLC (Damin J. Toell of Cousnel), for appellant. Law Offices of Aloy O. Ibuzor (Janice A. Robinson of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered September 28, 2017. The order denied plaintiff’s motion to vacate an order of that court entered August 12, 2016 which, upon plaintiff’s failure to timely submit opposition to defendant’s prior motion for summary judgment dismissing the complaint, granted defendant’s prior motion.

ORDERED that the order entered September 28, 2017 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment. A stipulation signed by the parties on November 9, 2015 provided that opposition to defendant’s motion “must be served on or before” June 12, 2016, and “[a]ll papers served beyond the within deadline[] shall be deemed null and void.” It is uncontested that plaintiff’s opposition to defendant’s motion was served on July 13, 2016. By order entered August 12, 2016, the Civil Court granted defendant’s motion, noting that it was not considering plaintiff’s late opposition as it had been served beyond the time set therefor in the stipulation, and dismissed the complaint. Thereafter, plaintiff moved, pursuant to CPLR 5015 (a) (1), to vacate the August 12, 2016 order. Plaintiff appeals from an order of the Civil Court entered September 28, 2017 denying plaintiff’s motion.

Where a plaintiff moves, pursuant to CPLR 5015 (a) (1), to vacate an order entered upon the plaintiff’s failure to oppose a motion, “the plaintiff is required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion” (Estrada v Selman, 130 AD3d 562, 562—563 [2015]; see also Longevity Med. Supply, Inc. v State Farm Fire & Cas. Co., 54 Misc 3d 136[A], 2017 NY Slip Op 50118[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; D & R Med. Supply, Inc. v American Tr. Ins. Co., 35 Misc 3d [*2]136[A], 2012 NY Slip Op 50785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In support of plaintiff’s motion to vacate, plaintiff’s attorney argued that due to law office failure, the “draft [of the opposition papers] was not . . . served on Defendant until one day after it was due to Defendant” (emphasis in the original). The record, however, indicates that plaintiff mailed its opposition papers to defendant on July 13, 2016, which was over a month past the stipulated due date of June 12, 2016. Under the circumstances, we find that plaintiff failed to demonstrate a reasonable excuse for its default and, therefore, we need not consider whether plaintiff offered a potentially meritorious opposition to defendant’s motion (see Wells Fargo Bank, N.A. v Syed, 160 AD3d 914, 915 [2018]).

We note that, for the first time on appeal, plaintiff states that its counsel “misread the stipulation as providing a due date of July 12, 2016.” However, we do not consider arguments or factual assertions raised for the first time on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Decided on August 23, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Gary Tsirelman, P.C. (Devon Riley Christian and David M. Gottlieb of counsel), for appellant. Law Offices of Peter C. Merani, P.C. (Edward M. Tobin and Adam Waknine of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), dated August 30, 2017. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking to vacate a judgment of that court entered July 28, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by her brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking to vacate a judgment of that court, entered July 28, 2016 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

At the outset, we note that the process server’s affidavit constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving a general agent of defendant who was authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 AD3d 1006 [2014]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]).

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the [*2]action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., Inc., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]). Here, we find that the Civil Court improvidently exercised its discretion in determining that defendant had provided a reasonable excuse for its default. Defendant submitted an affidavit by the employee allegedly served. However, the employee did not indicate whether he had in fact been served or even that he could not recall whether he had been served. Instead, he stated only that “[o]ne of my duties is to act as the receptionist” at defendant’s Brooklyn location and then purported to describe defendant’s business practices and procedures in recording receipt of summonses and complaints in its computer system. However, defendant’s employee did not indicate whether he had employed those practices and procedures at the time in question. An affidavit submitted by another of defendant’s employees, its claim representative, asserted conclusorily that defendant had not been served with the summons and complaint, since it did not have a record in its computer system of having received process. These affidavits are insufficient to warrant the relief requested (see Pierre J. Renelique Physician, P.C., as Assignee of Jose Mercado v Allstate Ins. Co., ___ Misc 3d ___, 2019 NY Slip Op 29225 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer are denied.

Decided on August 23, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

[*1]

Brown Chiari LLP, Buffalo (Timothy M. Hudson of counsel), for plaintiff-appellant.

Rupp Baase Pfalzgraf Cunningham LLC, Buffalo (Matthew A. Lenhard of counsel), for defendant-respondent.

Appeal from a judgment of the Supreme Court, Niagara County (Frank Caruso, J.), entered October 22, 2018. The judgment dismissed the complaint and awarded defendant costs and disbursements.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking supplementary uninsured/underinsured motorist (SUM) benefits from defendant, her motor vehicle liability insurer, based on injuries that plaintiff allegedly sustained in a motor vehicle accident. The jury returned a verdict finding that the accident was not “a substantial factor in causing an injury to [plaintiff].” Thereafter, Supreme Court denied plaintiff’s motion to set aside the verdict as against the weight of the evidence. Plaintiff appeals from a judgment entered after the jury’s verdict, and we affirm.

We reject plaintiff’s initial contention that the court erred in precluding her from calling as witnesses at trial any claims representatives employed by defendant or from entering into evidence any proof of insurance. It was undisputed at trial that plaintiff carried SUM coverage pursuant to a policy issued by defendant and that the SUM coverage was applicable to plaintiff’s motor vehicle accident, and thus there was no need for plaintiff to offer further evidence establishing the existence of the policy. Similarly, there is no indication in plaintiff’s pleadings or elsewhere in the record that she was alleging that defendant denied her claim for SUM benefits in bad faith (see e.g. Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 191-192 [2008]), and thus evidence that defendant conducted an internal investigation regarding plaintiff’s claim was not relevant to the issues at trial. Indeed, it is understandable that defendant engaged in such an investigation inasmuch as, “[w]hen an insured injures someone in a motor vehicle accident, the injured party is subject to the serious injury requirement in the No-Fault Law and cannot sue for noneconomic loss unless the serious injury threshold is met (see Insurance Law § 5104 [a]). Since the purpose of supplementary coverage is to extend to the insured the same level of coverage provided to an injured third party under the policy, the insured must also meet the serious injury requirement before entitlement to supplementary benefits. If this were not the case, the insured would receive coverage more comprehensive than that available to a third party injured by the insured” (Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196, 205 [2007]). Here, we agree with defendant that its representatives were not witnesses to the accident, have no personal knowledge of the facts of the accident, and are not medical doctors qualified to testify regarding plaintiff’s alleged injuries. Thus, defendant’s internal investigation and evaluation of plaintiff’s claim is therefore irrelevant to the issue whether plaintiff sustained a serious injury, which, along with the issue whether any such injury was causally related to the accident, were the primary issues before the jury (see generally 40 Rector Holdings, LLC v Travelers Indem. Co., 40 AD3d 482, 483 [1st Dept 2007]). We also agree with defendant that plaintiff did not need a representative from defendant to explain the relationship between the parties. Plaintiff’s counsel could have requested a special instruction from the court or elicited detailed testimony from the plaintiff on that topic. Moreover, plaintiff’s counsel did explain to the jury in his opening and closing statements the relationship between the parties.

Contrary to plaintiff’s contention, the court properly rejected her request to charge the jury pursuant to PJI 2:282 regarding the aggravation of a preexisting injury inasmuch as “ ’there was no factual basis for such a charge’ ” (Dennis v Massey, 134 AD3d 1532, 1533-1534 [4th Dept 2015]; cf. Mazurek v Home Depot U.S.A., 303 AD2d 960, 961 [4th Dept 2003]). We thus reject plaintiff’s contention that a “rational jury could have found that [plaintiff] had asymptomatic pre-existing arthritis that was activated and precipitated by the injury” and that a charge pursuant to PJI 2:282 was therefore warranted. We note, however, that plaintiff’s contention supports a charge under PJI 2:283 regarding increased susceptibility to injury, and that charge was given in this case (see Martin v Volvo Cars of N. Am., 241 AD2d 941, 943 [4th Dept 1997]).

We also reject plaintiff’s contention that the court erred in failing to set aside the verdict as against the weight of the evidence. It is well established that “[a] verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence” (Sauter v Calabretta, 103 AD3d 1220, 1220 [4th Dept 2013] [internal quotation marks omitted]). “That determination is addressed to the sound discretion of the trial court, but if the verdict is one that reasonable persons could have rendered after receiving conflicting evidence, the court should not substitute its judgment for that of the jury” (Ruddock v Happell, 307 AD2d 719, 720 [4th Dept 2003]; see Todd v PLSIII, LLC-We Care, 87 AD3d 1376, 1377 [4th Dept 2011]). “Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” (Schreiber v University of Rochester Med. Ctr., 88 AD3d 1262, 1263 [4th Dept 2011] [internal quotation marks omitted]). Here, there was sharply conflicting expert testimony with respect to whether plaintiff sustained an injury as a result of the accident, and the jury was entitled to credit the testimony of defendant’s expert and reject the testimony of plaintiff’s experts (see McMillian v Burden, 136 AD3d 1342, 1344 [4th Dept 2016]).

While we conclude under the circumstances of this case that the verdict is not against the weight of the evidence, we nonetheless note that the first question on the verdict sheet—i.e., “[w]as the accident . . . a substantial factor in causing an injury to [plaintiff]?”—invites the very problem we addressed in Brown v Ng (163 AD3d 1464, 1465 [4th Dept 2018]), where we noted that an interrogatory asking whether the plaintiff sustained an “injury” fails to address the appropriate legal issue, which is whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d). The first question on the verdict sheet was unnecessary here inasmuch as the second and third questions asked the jury to determine whether plaintiff sustained a serious injury under the relevant categories that was causally related to the accident.

Finally, we reject plaintiff’s contention that the court erred in denying her motion for a directed verdict on the issue of liability. Contrary to plaintiff’s contention, defendant was not required to issue a disclaimer regarding the serious injury threshold (see generally Insurance Law § 3420 [f] [1], [2]; Raffellini, 9 NY3d at 205; Meegan v Progressive Ins. Co., 43 AD3d 182, 184-185 [4th Dept 2007]). Present—Peradotto, J.P., DeJoseph, NeMoyer and Curran, JJ.

[*1]

Hurwitz & Fine, P.C., Buffalo (Jerry Marti of counsel), for defendant-appellant.

The Morris Law Firm, P.C., Buffalo (Daniel K. Morris of counsel), for plaintiff-respondent.

Appeal from an order of the Supreme Court, Erie County (Catherine R. Nugent Panepinto, J.), entered November 1, 2017. The order denied defendant’s motion to dismiss the amended complaint.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the amended complaint is dismissed.

Memorandum: Plaintiff, as the assignee of claims for no-fault benefits of individuals who had received health care services from plaintiff for injuries sustained in motor vehicle accidents, commenced this action against defendant, the issuer of the assignors’ no-fault policies. In its amended complaint, plaintiff alleged, inter alia, that defendant violated the no-fault regulations by requesting verifications and examinations under oath and delaying the payment of claims for treatment rendered by plaintiff to the assignors. Although the no-fault claims were adjudicated and paid by defendant after arbitration, plaintiff sought further damages from defendant for the manner in which those claims were processed. Prior to serving its answer, defendant moved to dismiss the amended complaint on, inter alia, the ground that it failed to state a cause of action upon which relief could be granted (see CPLR 3211 [a] [7]). Supreme Court denied the motion, and we reverse.

On a CPLR 3211 (a) (7) motion to dismiss, “[w]e accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Hall v McDonald’s Corp., 159 AD3d 1591, 1592 [4th Dept 2018]). “The allegations in a complaint, however, ‘cannot be vague and conclusory . . . , and [b]are legal conclusions will not suffice’ ” (Choromanskis v Chestnut Homeowners Assn., Inc., 147 AD3d 1477, 1478 [4th Dept 2017]; see Simkin v Blank, 19 NY3d 46, 52 [2012]).

We agree with defendant that the court erred in denying the motion with respect to the breach of contract cause of action. The amended complaint alleged that defendant and plaintiff “were parties to the applicable insurance contracts by way of the [a]ssignments of [b]enefits” and that “[t]he underlying verification requests, examinations under oath, and subsequent non-payment of bills by . . . [d]efendant represent a breach of contract.” The amended complaint, however, failed to identify the specific insurance contracts that plaintiff had performed services under or the contract provisions that defendant allegedly breached. Inasmuch as bare legal conclusions without factual support are insufficient to withstand a motion to dismiss, we conclude that the amended complaint fails to state a cause of action for breach of contract. Additionally, we note that plaintiff conceded in its respondent’s brief that “[d]efendant[ ] did not fail to perform their obligations under the contract[s]” and that “the contracts have specific remedies available to plaintiff . . . , and all such remedies have already been applied” (see generally Non-Instruction Adm’rs & Supervisors Retirees Assn. v School Dist. of City of Niagara Falls, 118 AD3d 1280, 1283 [4th Dept 2014]).

With respect to the cause of action for negligent hiring, supervision, or retention, the amended complaint alleged that defendant’s employees delayed the payment of plaintiff’s claims and sent plaintiff requests for verification and examinations under oath, that defendant was aware of its employees’ propensity to commit those acts, and that defendant nevertheless continued to employ them. Although “[a]n employer may be liable for a claim of negligent hiring or supervision if an employee commits an independent act of negligence outside the scope of employment and the employer was aware of, or reasonably should have foreseen, the employee’s propensity to commit such an act” (Lamb v Stephen M. Baker, O.D., P.C., 152 AD3d 1230, 1231 [4th Dept 2017] [internal quotation marks omitted]), the amended complaint failed to allege that the acts of defendant’s employees were committed independent of defendant’s instruction or outside the scope of employment (see id.). The amended complaint also failed to allege how the employees’ purported acts of sending requests for verification and examinations under oath constituted acts of negligence. We therefore conclude that the court erred in denying defendant’s motion with respect to the cause of action for negligent hiring, supervision, or retention.

We also agree with defendant that the amended complaint failed to allege facts sufficient to state a cause of action for prima facie tort (see generally Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]). “There can be no recovery [for prima facie tort] unless a disinterested malevolence to injure [a] plaintiff constitutes the sole motivation for [the] defendant[‘s] otherwise lawful act” (Backus v Planned Parenthood of Finger Lakes, 161 AD2d 1116, 1117 [4th Dept 1990] [internal quotation marks omitted]). Here, the amended complaint alleged that defendant acted in “bad faith” and intentionally caused harm to plaintiff by requesting verifications and examinations under oath. Those conclusory allegations, however, failed to state that defendant had “ ’a malicious [motive] unmixed with any other and exclusively directed to [the] injury and damage of [plaintiff]’ ” (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333 [1983]). Furthermore, it is “[a] critical element of [a prima facie tort] cause of action . . . that plaintiff suffered specific and measurable loss” (Freihofer, 65 NY2d at 143; see Lincoln First Bank of Rochester v Siegel, 60 AD2d 270, 279-280 [4th Dept 1977]). Here, the injuries alleged in the amended complaint, i.e., delayed payment of claims resulting in a “reduced cash flow,” are “couched in broad and conclusory terms” (Lincoln First Bank of Rochester, 60 AD2d at 280), and do not constitute “specific and measurable loss” (Freihofer, 65 NY2d at 143; cf. S. E. Nichols, Inc. v Grossman [appeal No. 1], 50 AD2d 1086, 1086 [4th Dept 1975]). Thus, the court erred in denying the motion with respect to the prima facie tort cause of action.

Finally, as conceded by plaintiff’s counsel at oral argument of this appeal before this Court, defendant is entitled to dismissal of the remaining causes of action asserted in the amended complaint. Present—Peradotto, J.P., Lindley, DeJoseph, Troutman and Winslow, JJ.