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Hovsepian v Allstate Ins. Co. (2004 NY Slip Op 51407(U))
[*1]


Decided on November 16, 2004
Civil Court, Kings County

67997/2003
Peter P. Sweeney, J.
Plaintiff commenced this action by service of a summons and endorsed complaint seeking damages in the amount of $25,000.00 due to a "FALSE REPORT ON MY RECORD (DRIVER'S) CAUSING HIGH INS. RATES." Defendant now moves for summary judgment dismissing the complaint or in the alternative, for an order directing plaintiff to comply with its discovery demands.
Plaintiff's complaint had been previously dismissed by order dated July 7, 2004. That order was vacated pursuant to stipulation of the parties on July 8, 2004. The stipulation further provided that plaintiff's correspondence dated May 5, 2004 would be deemed served upon defendant and deemed plaintiff's affirmation in opposition. The stipulation further provided that defendant would be given until September 8, 2004 to submit supplemental papers in further support of its motion and that plaintiff would be given until September 22, 2004 to serve a response to defendants
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supplemental papers. Defendant submitted a supplemental affirmation on September 8, 2004 to which plaintiff has not responded.
In support of the motion, defendant submitted plaintiff's deposition transcript which indicates that the alleged "False Report" is a report of a motor vehicle accident defendant made to Choicepoint (a company that collects information about motor vehicle accidents) concerning a motor vehicle accident that occurred on May 14, 2000. The plaintiff owned one of the vehicles involved in the accident which was being operated by his son, Daniel Hovsepian.
The Choicepoint report reflects that the defendant paid out on two claims arising out of the accident; a bodily injury claim in the amount of $7,000.00 and a property damage claim in the amount of $5,589.00.
The plaintiff is not disputing the fact that the accident occurred or that the defendant paid out on the two claims arising out of the accident. The gist of plaintiff's complaint appears to be that the defendant should not have paid out on the two claims inasmuch as there was no compelling evidence of his son's negligence.
In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. (Klein v. City of New York, 89 NY2d 833, 834-35 (1996); Ayotte v. Gervasio, 81 NY2d 1062, 1062 (1993), Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986). Here, defendant established its prima facie showing of entitlement to judgment as a matter of law by demonstrating that the Choicepoint report was not false as alleged. Accordingly, the burden shifted to the plaintiff to rebut that prima facie showing, by producing contrary evidence, [*2]in admissible form, sufficient to require a trial of material factual issues (Kaufman v. Silver, 90 NY2d 204, 208 (1997); Amatulli v. Delhi Constr. Corp., 77 NY2d 525, 533-34 (1999); Iselin & Co. v. Mann Judd Landau, 71 NY2d 420, 427 (1988). Inasmuch as no such evidence was produced, defendant's motion must be granted.
Even if the court were to consider plaintiff's claim that the defendant improvidently settled the two claims without properly investigating their merits and without consulting the plaintiff, the result would be the same. It is well settled that an insurance carrier is not obligated to consult with its insured in regard to settlement of a claim (see Knobloch v. Royal Globe Ins. Co., 38 NY2d 471, 479, 344 NE2d 364, 369, 381 NYS2d 433, 438). Indeed, a cause of action alleging a breach of the insurer's duty of good faith will not lie where, as here, the insurer has settled a claim within the
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monetary limits of the insured's policy (Feliberty v. Damon, 129 AD2d 207, 210, 517 NYS2d 632, 634; see also Marginian v. Allstate Ins. Co., 18 Ohio St.3d 345, 481 NE2d 600). Moreover, New York has not recognized a cause of action for breach of an insurer's implied covenant of good faith and fair dealing where it was alleged that an insurer's failure to reasonably investigate claims made against the insured resulted in increased premiums (Insurance Co. of Greater New York v. Glen Haven Residential Health Care Facility, 253 AD2d 378, 379, 676 NYS2d 176, 177). Accordingly, it is hereby
ORDERED that defendant's motion for summary judgment dismissing the complaint is GRANTED. The motion in all other respects is DENIED as moot.
This constitutes the decision and order of the court.
Dated: November 16, 2004 _________________________________
PETER P. SWEENEY

Judge, Civil Court
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