District Judge Frank P. Geraci, Jr.


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Plaintiff insured’s home was damaged by a Nov. 2014 snow storm. His policy covered “weight of ice, snow or sleet, which cause damage to property contained in a building.” He notified defendant 12 days later. In a brief conversation, a claims representative told plaintiff his claim would be denied. After spending $171,873 on repairs, plaintiff again contacted defendant in Aug. 2015. Defendant denied his claim as not promptly reported. In addition to contract breach, plaintiff alleged fraud, constructive fraud, negligent misrepresentation, and violation of New York General Business Law §349. The court only partly granted defendant insurer dismissal, finding plaintiff sufficiently alleged fraud and pleaded facts giving rise to a strong inference of fraudulent intent. However, he insufficiently alleged a fiduciary or confidential relationship. In dismissing his negligent misrepresentation claim the court found plaintiff alleged no facts triggering a duty to disclose correct information. His allegation failed to suggest that his conversation with the claims representative strayed from an ordinary conversation between an insurer’s representative and an insured. Nor did he sufficiently allege a consumer-oriented act or practice for purposes of GBL §349.