In a March 29, 2011, decision by Justice Driscoll, the court granted in part and denied in part plaintiffs’ motion to dismiss defendant’s third-party summons and counterclaims. Plaintiffs-insurance brokers sued defendant-insurer for wrongful termination under insurance producer agreements between them. Defendant counterclaimed and impleaded a number of additional third-party defendants by way of summons, alleging that plaintiffs and the impleaded parties conspired fraudulently to obtain commissions under the agreements. Plaintiffs argued that defendant’s pleading was improper because the impleaded parties were not directly liable to defendant for the damages plaintiffs were seeking to recover, and because New York law does not recognize a claim for civil conspiracy. The court denied plaintiffs’ motion to dismiss the third-party summons and counterclaims in their entirety because the claims against the impleaded parties alleging an improper insurance scheme sufficiently involved plaintiffs to be asserted against all of them. The court also denied plaintiffs’ motion to dismiss defendant’s counterclaim for conspiracy to commit fraud because it was based on alleged misrepresentations that defendant allegedly relied upon in procuring the insurance policies, and because defendant’s allegations of conspiracy sufficiently connected plaintiffs to the overall scheme. The court, however, granted plaintiffs’ motion to strike the phrase “Sham Small Group Companies” under CPLR 3024 [b] because the word “Sham” was used “gratuitous[ly]” and was “solely designed to inflame the reader or listener.”
AJS Agency, Inc. v Empire HealthChoice, HMO, Inc., Sup Ct, Nassau County, March 29, 2011, Driscoll, J., Index No. 11440/10