mesa

Short Form Order

NEW YORK SUPREME COURT - QUEENS COUNTY

Present:              HONORABLE    JOHN J. MILANO IA Part 3
Justice
_________________________________
                                                                x                          Index
MARIA MESA                                                                    Number 2324 1999

Motion
- against - Date July 27, 1999

PATRIOT PLANNING CORPORATION, et al. Motion
_________________________________x Cal. Number 9

The following papers numbered 1 to 21 read on this motion by defendant Ronald Cohen for an order dismissing the complaint against him pursuant to CPLR 3211(a) (1), (5), and (7), on this cross motion by defendant Patriot Planning Corporation for an order dismissing the complaint against it pursuant to CPLR 3211(a) (1), (5) and (7), and on this cross motion by plaintiff Maria Mesa for an order permitting her to serve an amended complaint.

Papers
Numbered

Notice of Motion - Affidavits - Exhibits ......... 1 - 4
Notice of Cross Motion - Affidavits - Exhibits ... 5 - 13
Answering Affidavits - Exhibits .................. 14 - 16
Reply Affidavits ................................. 17 - 21

Upon the foregoing papers it is ordered that that branch of the motion by defendant Ronald Cohen and that branch of the cross motion by defendant Patriot Planning Corp. which are for an order dismissing the complaint against them pursuant to CPLR 3211 (a) (7) for failure to state a cause of action are granted. The remaining branches of the motion and the cross motion are denied as moot.

The plaintiff's cross motion is denied.

(See the accompanying memorandum.)

Dated: October 19, 1999 ______________________________

J.S.C.

MEMORANDUM

SUPREME COURT : QUEENS COUNTY
IA PART 3

_______________________x

MARIA MESA INDEX NO.: 2324/99
- against - BY: MILANO, J.

PATRIOT PLANNING CORPORATION, et al. DATED: OCTOBER 19, 1999

Defendant Ronald Cohen has moved for an order dismissing the complaint against him pursuant to CPLR 3211(a) (1), (5) and (7). Defendant Patriot Planning Corp. has cross-moved for the same relief. Plaintiff Maria Mesa has cross-moved for an order permitting her to serve an amended complaint.

On January 9, 1992, defendant Ronald Cohen, an insurance agent employed by defendant Patriot Planning Corp., met with the late Rudy Mesa and plaintiff Maria Mesa, who filled out applications for life insurance. The United States Life Insurance Company subsequently issued a $100,000.00 policy to Rudy Mesa and a second $50,000.00 policy to Maria Mesa, and the former's policy had an additional $100,000.00 accidental death benefit. According to defendant Cohen, in June, 1992, plaintiff Maria Mesa told him that Rudy Mesa had lost his job and that they could no longer afford the premiums. Cohen alleges that he suggested that they combine the policies and delete the accidental death benefit clause, which would result in a savings of approximately $700.00. Defendant Cohen further alleges that on July 26, 1992, the Mesas executed amendments to their applications for life insurance and that he then delivered an amended policy to them deleting the accidental death benefit clause. Plaintiff Mesa denies these allegations and swears that her signature on the amended application is a forgery. Defendant Cohen alleges that on or about August 10, 1992, the insurer sent the plaintiff a premium refund check in the amount of $500.00. The plaintiff denies receiving such a check. Rudy Mesa died on November 28, 1994 from allegedly accidental causes. The insurer paid $103,601.73 to the plaintiff, but refused to pay accidental death benefits. This action for breach of the insurance contract ensued.

That branch of the motion by defendant Cohen and that branch of the cross motion by defendant Patriot Planning Corp. which are for an order dismissing the complaint pursuant to CPLR 3211(a) (7) for failure to state a cause of action are granted. The remaining branches of the motion and the cross motion are denied as moot. The complaint fails to state a cause of action against these defendants for breach of the insurance contract. The insurance agent for an insurer as a disclosed principal is not liable for the insurer's alleged breach of the policy. (Benatovich v Propis Agency, Inc., 224 AD2d 998; Van Hoesen v Pennsylvania Millers Mut. Ins. Co., 86 AD2d 733.)

The plaintiff's cross motion for an order permitting her to serve an amended complaint is denied. "The statute of limitations for a cause of action sounding in fraud is six years from the wrong or two years from the date the fraud could reasonably have been discovered, whichever is later ***." (Hillman v City of New York, ___ AD2d ___, 693 NYS2d 224.) The documentary evidence in this case, including the refund check issued by the insurer, shows that the fraud, if any, was committed during June, July, and August of 1992. The plaintiff began this action on February 1, 1999, more than six years afterward. Moreover, the plaintiff began a breach of contract action against the insurer based on the accidental death clause on February 8, 1996 (Mesa v The United States Life Insurance Company, Index No. 002857/96.) The case at bar was not brought within two years of the discovery of the fraud, if any. Finally, the court notes that any cause of action for tortious interference with contract which the plaintiff may have had is barred by CPLR 214[4], the applicable three year statute of limitations. (See, Kenneth D. Laub & Co., Inc. v Bear Sterns Companies, Inc., ___ AD2d ___, 692 NYS2d 30.)

Short form order signed herewith.

______________________________ J.S.C.