May 15, 2014

Uptown Healthcare Mgt. Inc. v Allstate Ins. Co. (2014 NY Slip Op 03594)

Headnote

The court considered the motion of the defendants Allstate Insurance Company, Robert P. Macchia, and Mehmet F. Gokce to dismiss the complaint. The main issue in the case was whether the amended complaint was sufficient to state a cause of action upon which relief could be granted. The court held that the amended complaint, like the original complaint, was insufficient to state a cause of action. Plaintiffs had asserted that Allstate had no right to investigate whether they were fraudulently licensed under Public Health Law article 28 and therefore ineligible to receive no-fault reimbursements, but the court found that Allstate plainly has that right. Additionally, the court found that no cause of action lies against Allstate's counsel for undertaking a legitimate investigation at Allstate's behest. Therefore, the court affirmed the order to grant the motions of the defendants to dismiss the complaint and denied plaintiffs' cross motion for summary judgment.

Reported in New York Official Reports at Uptown Healthcare Mgt. Inc. v Allstate Ins. Co. (2014 NY Slip Op 03594)

Uptown Healthcare Mgt. Inc. v Allstate Ins. Co.

2014 NY Slip Op 03594 [117 AD3d 542]

May 15, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, July 2, 2014

[*1]

Uptown Healthcare Management Inc., Doing Business as East Tremont Medical Center et al., Appellants,
v
Allstate Insurance Company, Defendant, and Robert P. Macchia et al., Respondents.

Blodnick Fazio & Associates, P.C., Garden City (Edward K. Blodnick of counsel), for appellants.

Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for respondents.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 24, 2012, which granted the motions of defendants Allstate Insurance Company, Robert P. Macchia, and Mehmet F. Gokce to dismiss the complaint, and denied plaintiffs’ cross motion for summary judgment, unanimously affirmed, with costs.

Where an amended pleading is submitted in response to a pre-answer motion to dismiss, the provident course of action for the motion court is to include the amended complaint in the record on the pending motion, which should then be granted or denied based on the sufficiency of the amended pleading (see e.g. Polish Am. Immigration Relief Comm. v Relax, 172 AD2d 374, 375 [1st Dept 1991]; see also Weinstein-Korn-Miller, NY Civ Prac ¶ 3025.07 [2d ed 2011]).

Here, the amended complaint, like the original complaint, was insufficient to state a cause of action upon which relief could be granted. Plaintiffs asserted that defendant Allstate had no right to investigate whether they were fraudulently licensed under Public Health Law article 28 and therefore ineligible to receive no-fault reimbursements. Allstate plainly has that right (see e.g. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008]). Plaintiffs also attempted to assert causes of action against Allstate’s counsel, defendants Robert P. Macchia and Mehmet P. Gokce for undertaking a legitimate investigation at Allstate’s behest. It is well settled that no [*2]such cause of action lies (Hahn v Wylie, 54 AD2d 629, 629 [1st Dept 1976]).

We have considered the plaintiffs’ remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Andrias, DeGrasse, Manzanet-Daniels and Feinman, JJ. [Prior Case History: 2012 NY Slip Op 33515(U).]