This action arises from a policy insuring the life of plaintiff Zeng Lin, issued in 2008 by defendant New York Life Insurance & Annuity Company (New York Annuity) to Zeng Lin's daughters, Yu Lin and Yan Lin.^[FN1] Yu Lin and Yan Lin allege that they were induced to purchase the 405 Policy by misrepresentations made by defendant Sally Lam, a former New York Annuity [*2]insurance broker, to the effect that the policy's terms guaranteed that its premiums would never increase. Plaintiffs have asserted numerous causes of action against New York Annuity; its corporate affiliate, New York Life Insurance Company (New York Life); Lam; and several of Lam's family members whom plaintiffs allege to have been involved in some way with her alleged fraudulent sales pitch to plaintiffs.

On motion sequence 001, New York Annuity and New York Life move under CPLR 3211 to dismiss the claims against them. On motion sequence 002, Lam and her relatives move under CPLR 3211 to dismiss the claims against them. Both motions are granted.

On motion sequence 001, New York Annuity and New York Life move to dismiss the claims against them under CPLR 3211 (a) (1), (a) (5), and (a) (7).

As an initial matter, this court agrees with movants that plaintiffs' claims against New York Life are subject to dismissal because the language of the 405 Policy establishes that it was issued solely by New York Annuity, not also New York Life.^[FN2] (See NYSCEF No. 28 [policy].) In opposition, plaintiffs contend that dismissal of New York Life would be premature because pleadings in related litigation between New York Annuity/New York Life and Lam reflect that those corporations, while separate, both had a contract with Lam and considered her their agent. (See NYSCEF No. 39 at ¶¶ 130-133.) The question, though, is not whether Lam was, in general, acting as the agent of both New York Annuity and New York Life, but rather whether she was acting as the agent of both corporations when selling plaintiffs the 405 Policy. Plaintiffs have not alleged facts that might support this conclusion. Nor have they alleged facts that might support piercing the corporate veil separating Annuity and Life.

Plaintiffs' claims against New York Life are dismissed.

New York Annuity moves under CPLR 3211 (a) (5) to dismiss plaintiffs' second (fraud), third (negligence), fourth (negligent misrepresentation), (fifth (negligent hiring/supervision), sixth (injurious falsehood), twelfth (rescission), and thirteenth (General Business Law [GBL] § 349) causes of action as time-barred. This branch of New York Annuity's motion is granted.

The dispositive question for limitations purposes is when plaintiffs' claims accrued—no later than 2018, or no later than 2021. New York Annuity argues, and this court agrees, that the latest possible accrual date was in 2018.

The core allegation underlying plaintiffs' claims is that defendant Lam persuaded Yu and Yan Lin to purchase the 405 Policy by telling them in 2008 that "the premium rate would be set at a particular amount and [would] not be subject to change" during the life of the policy. (NYSCEF No. 1 at ¶ 53.) Instead, plaintiffs allege, the no-premium-increase rider lapsed, [*3]leading to premium increases and, as a result, to the policy's being cancelled for failure to pay premiums. (See e.g. id. at ¶¶ 94-97 [breach-of-contract claim]; id. at ¶¶ 114-119 [fraud claim].) The policy expressly provides that the no-premium-increase rider at issue would expire 10 years from issuance of the policy, or September 25, 2018. (See NYSCEF No. 17 at 4 [policy].) Because of that, the 405 Policy's premiums would have increased in 2018—thereby also placing plaintiffs at least on inquiry notice about the accuracy of Lam's (alleged) misrepresentations about the policy's premiums.

Given a 2018 accrual date—or a 2018 discovery date for fraud-based claims resting on Lam's 2008 misrepresentations about the policy—nearly all the claims at issue on this branch of New York Annuity's motion are time-barred.^[FN3]

Plaintiffs contend that these claims are timely, because the claims did not accrue until 2021. (See NYSCEF No. 39 at ¶¶ 83-84.) But plaintiffs do not sufficiently explain why this should be so. Plaintiffs' proffered basis for this later accrual date is that they were alerted in 2021 that the individual defendants had fraudulently taken out other insurance policies on Zeng Lin's life, which in turn apparently caused plaintiffs to look more closely at the terms of the 405 Policy. (See id. at ¶ 77, citing NYSCEF No. 1 at ¶¶ 66-71 [discussing other allegedly fraudulent policies].) None of plaintiffs' claims against New York Annuity, though, are based on injuries resulting from the other policies—only on harms related to the 405 Policy. (See NYSCEF No. 1 at ¶¶ 94-100, 112-122, 130-136, 139-142, 145-149, 154-158, 203-208, 209-219, 221, 225.) Additionally, plaintiffs do not rebut New York Annuity's argument that they would have been placed on notice of the falsity of Lam's alleged misrepresentations in 2018, once the policy premiums increased following the expiration of the premiums rider.

Plaintiffs also argue that the statute of limitations was tolled by the continuing-wrong doctrine. (See NYSCEF No. 39 at ¶¶ 81, 85.) This doctrine, however, "may only be predicated on continuing unlawful acts,"' i.e., on a "series of independent, distinct wrongs," rather than on "the continuing effects of earlier unlawful conduct." (Henry v Bank of Am., 147 AD3d 599, 601 [1st Dept 2017].) Here, the wrongs alleged by plaintiffs in the causes of action at issue on this branch of the motion all relate to conduct by Lam in 2008 that induced plaintiffs to purchase the 405 Policy in the first place—not on separate, independent wrongs that were committed after purchase. Plaintiffs' claimed injuries, the continuing effects of past wrongs, do not implicate the continuing-wrong doctrine.

This branch of New York Annuity's motion to dismiss is granted with respect to plaintiffs' second, third, fourth, fifth, sixth, twelfth causes of action against it; granted with respect to the aspect of plaintiffs' thirteenth cause of action against it that is based on the 405 Policy; and denied with respect to the aspect of plaintiffs' thirteenth cause of action against it that is based on the other insurance policies.

New York Annuity also moves under CPLR 3211 (a) (1) and (a) (7) to dismiss plaintiffs' claims against it. Given the court's conclusions on New York Annuity's limitations-based arguments, this court addresses only those part of Annuity's (a) (1) and (a) (7) arguments that seek to dismiss plaintiffs' first (breach-of-contract), tenth (breach-of-fiduciary-duty), eleventh (breach-of-implied-covenant), and thirteenth (GBL § 349, based on the other insurance policies) causes of action. This branch of New York Annuity's motion is granted.

With respect to breach of contract and breach of the implied covenant, as discussed above, the terms of the policy expressly reflect that the no-increase-in-premiums term of the policy would last only for 10 years after issuance. Plaintiffs do not allege that New York Annuity wrongly increased premiums while that term was in effect, or otherwise took steps during that period to prevent plaintiffs from enjoying the benefits of the no-increase term. Rather, plaintiffs' argument is that the contract, as written and signed, did not reflect or fulfill the representations about its terms that Lam made to them in 2008. That argument sounds in fraud, not contract.

Plaintiffs' breach-of-fiduciary-duty claim fails because an insurance company does not owe its policyholder customers a fiduciary duty absent the presence of special circumstances that plaintiffs have not alleged. (See Fiala v Metropolitan Life Ins. Co., 6 AD3d 320, 322 [1st Dept 2004].) Plaintiff's statements in the complaint that New York Annuity owed plaintiffs a fiduciary duty are mere legal conclusions that cannot support a cause of action.

The remaining prong of plaintiffs' GBL § 349 claim against New York Annuity fails to state a cause of action. Plaintiffs do not allege that New York Annuity had any knowledge of the alleged fraudulent insurance policies that Lam and her relatives are claimed to have purchased; nor that a basis exists to hold New York Annuity vicariously liable for those purchases. Nor, in any event, do plaintiffs identify any conduct that had "a broad impact on consumers at large," as required for a GBL § 349 claim. (North State Autobahn Inc. v Progressive Ins. Group Co., 102 AD3d 5, 12 [2d Dept 2010].) At most, plaintiffs allege that Lam and her relatives committed repeated acts of individualized fraud by taking out insurance policies on the lives of unsuspecting insureds. That allegation does not state a GBL § 349 cause of action.

On motion sequence 002, Lam and the other individual defendants move to dismiss the claims against them under CPLR 3211 (a) (1), (a) (5), and (a) (7).

The motion is granted as to the second, third, fourth, fifth, sixth, and twelfth causes of action, and the aspect of the thirteenth cause of action based on the 405 Policy, on the same limitations grounds as the claims against New York Annuity discussed above. Similarly, even assuming that plaintiffs' tenth cause of action (fiduciary duty) against the individual defendants sounds sufficiently in fraud to be subject to a six-year limitations period (see Access Point Med., LLC v Mandell, 106 AD3d 40, 44 [1st Dept 2013]), that cause of action is still untimely for the same reasons as plaintiffs' fraud claim (the second cause of action).

To the extent that the eighth and ninth causes of action (tortious interference with contract and business relations), asserted against Lam, pertain to the allegedly fraudulent other [*4]insurance policies, they are untimely. These claims are subject to a three-year limitations period, running from injury, not discovery. (See Sapienza v Notaro, 172 AD3d 1418, 1420 [2d Dept 2019] [interference with advantageous business relationship]; American Fed. Group v Edelman, 282 AD2d 279, 279 [1st Dept 2001] [interference with contract].) Plaintiffs' complaint reflects that the other insurance policies were allegedly purchased in approximately 2009. (See NYSCEF No. 1 at ¶¶ 69 [d], 70 [d], 71 [d].) Even indulging the unlikely assumption that plaintiffs did not sustain injury from the existence of these fraudulent policies for a decade after their purchase, their tortious-interference claims based on these policies would still have accrued more than three years before plaintiffs brought this action.

To the extent that the eighth, and ninth causes of action, asserted against Lam, pertain only to the 405 Policy, these causes of action would necessarily have accrued no later than 2018. That is when the 405 Policy's premiums increased above the rate promised by Lam, thereby injuring plaintiffs. These claims are therefore also time-barred. (See NYSCEF No. 37 at 5.)

The first and eleventh causes of action (breach of contract and implied covenant), as asserted against the individual defendants, are subject to dismissal on the same (a) (1) and (a) (7) grounds discussed above. The aspect of the thirteenth cause of action based on the other insurance policies fails to state a GBL § 349 cause of action for lack of consumer-oriented conduct for the reasons set forth above.

Finally, the seventh cause of action (for injurious falsehood) is subject to dismissal under CPLR 3211 (a) (7). A plaintiff suing in injurious falsehood or prima facie tort must plead with particularity special damages and the causal relationship between tort and damages. (See DiSanto v Forsyth, 258 AD2d 497, 498 [2d Dept 1999]; L.W.C. Agency, Inc. v St. Paul Fire & Marine Ins. Co., 125 AD2d 371, 373 [2d Dept 1986].) The general allegation that "as a result of Lam's malicious actions" in purchasing the other insurance policies, Yu and Yan Lin "were prevented from purchasing any other life insurance policies on the life of" Zeng Lin (NYSCEF No. 1 at ¶ 169), is not enough.

Accordingly, it is

ORDERED that the motion to dismiss of defendants New York Annuity and New York Life (mot seq 001) is granted, and plaintiffs' claims against those defendants are dismissed, with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that the individual defendants' motion to dismiss (mot seq 002) is granted, and plaintiffs' claims against those defendants are dismissed, also with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that New York Annuity serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk (by the means set forth in the court's e-filing protocol, available on the e-filing page of the court's website, https://ww2.nycourts.gov/ courts/1jd/supctmanh/E-Filing.shtml), which shall enter judgment accordingly.