| Superior Officers Council Health & Welfare Fund v Empire HealthChoice Assur., Inc. |
| 2011 NY Slip Op 08449 [17 NY3d 930] |
| November 21, 2011 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, January 11, 2012 |
| Superior Officers Council Health & Welfare Fund et al., Appellants, v Empire HealthChoice Assurance, Inc., Doing Business as Empire BlueCross BlueShield, Respondent. |
Decided November 21, 2011
Superior Officers Council Health & Welfare Fund v Empire HealthChoice Assur., Inc., 85 AD3d 680, affirmed.
APPEARANCES OF COUNSEL
Mirkin & Gordon, P.C., Great Neck (Joel Spivak, Donna M. Cliff and Stephen F. Gordon of counsel), for appellants.
Gibson, Dunn & Crutcher LLP, New York City (Randy M. Mastro and Jonathan D. Fortney of counsel), for respondent.
Memorandum.
The order of the Appellate Division should be affirmed, with costs. [*2]
The Appellate Division properly construed the plain language of the agreement and determined that plaintiffs' failure to adopt a drug formulary bars them from sharing in certain rebates that defendant received from prescription drug manufacturers. Additionally, plaintiffs fail to state a cause of action for breach of fiduciary duty separate and apart from their breach of contract claim.
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.