FILED: RICHMOND COUNTY CLERK 05/06/2014 INDEX NO /2014 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/06/2014

Transcription

1 FILED: RICHMOND COUNTY CLERK 05/06/2014 INDEX NO /2014 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 05/06/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND _. x PESCE BROTHERS, INC. d/b/a CAR CRAFT TRUCK WORKS, IndexNo / again st- Plaintiff, COVER ME INSURANCE AGENCY OF Ni, INC., NATIONAL INDEPENDENT TRUCKERS INSURANCE COMPANY, RRG, HILLS ADJUSTMENT BUREAU, INC., and MICHAEL J. POLLER, Defendants. - x REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS Of Counsel: Robert M. Sullivan, Esq. Elizabeth A. Scoditti, Esq. SULLIVAN & KLEIN, LLP Attorneys for Defendant HILLS ADJUSTMENT BUREAU, INC, 980 Avenue of the Americas, Suite 405 New York, New York (212) File No.:

2 PRELIMINARY STATEMENT Defendant, HILLS ADJUSTMENT BUREAU, INC. ("Hills") by its attorneys, Sullivan & Klein, LLP, submit this reply memorandum of law in further support of their motion and in response to Plaintiff PESCE BROTHERS, INC. d/b/a CAR CRAFT TRUCK WORKS'S ("PESCE") memorandum oflaw in opposition to Hills's instant Motion which seeks an Order: (a) Pursuant to CPLR 3211(a)(7) dismissing the Fifth Cause of Action of the Complaint as against Hills because Plaintiffhas pleaded facts that encompass an alleged violation of section 2610 of the New York Insurance Law, which does not provide a basis of a claim in tort since a violation of section 2610 is in the exclusive province of the New York Superintendent of Department of Financial Services; (b) Pursuant to CPLR 3211(a)(7) dismissing the Fifth Cause of Action of the Complaint as against Hills because Plaintiffhas failed to allege that Defendant's alleged business interference was effectuated by unlawful means or egregious conduct, such as conduct engaged in for the sole purpose of harming the Plaintiff; (c) Pursuant to CPLR 3211(a)(7) and 3016 dismissing the Second Cause of Action as against Hills on the grounds that Plaintiff failed to allege with requisite specificity the circumstances constituting the alleged fraud; (d) Pursuant to CPLR 3211 (a)(7) dismissing the First Cause of Action of the Complaint as against Hills on the grounds that Plaintiffs Complaint fails to allege Defendant engaged in any deceptive or misleading conduct as required by General Business Law 349; 1

3 (e) Pursuant to CPLR 3211(a)(7) dismissing the First Cause of Action of the Complaint as against Hills on the grounds that Plaintiffs Complaint fails to allege Defendant engaged in false advertising as required by General Business Law 350; (f) Pursuant to CPLR 3211(a)(7) dismissing the Fourth Cause of Action of the Complaint as against Hills on the grounds that Plaintiffhas failed to itemize special damages that were proximately caused by Hills's alleged statement and that statements of opinion are not actionable; and (g) Pursuant to CPLR 3211(a)(7) dismissing the Sixth Cause of Action ofthe Complaint seeking injunctive relief on the grounds that the Plaintiffhas not alleged facts sufficient to show irreparable injury. Hills's motion must be granted, for the following reasons: First, Plaintiffs conclusory and general allegations, inter alia, that defendants "individually and collectively, knowingly and intentionally" made misrepresentations about Piaintiff and that Hills is an "affiliate of Cover Me and National Independent Truckers Insurance Company ("NITIC")' 1, does not set forth a cognizable cause of action against Hills. Mere conclusions of affiliation, without setting forth the relationship to the other corporation by shareholdings or other means of control, are subject to dismissal for insufficiency. Furthermore, the Complaint alleges no facts, but merely the conclusion that since Hills is an "affiliate" of Cover Me, the causes of action set forth in the Complaint can be alleged against Hills as well. An allegation of affiliation with Cover Me and an allegation that the defendants "knowingly and intentionally combine and conspire with one another to perpetrate this unlawful scheme," without any facts to support these allegations, are mere conclusions oflaw and are insufficient to sustain a cause of action. 3

4 Second, absent specific allegations connecting an individual defendant to an alleged fraud, it is not permissible to draw an inference of the individual's knowledge or participation. Third, Plaintiffs reliance on North State Autobahn, Inc. v. Progressive Insurance Group Company, 102 A.D.3D 5, 953 N.Y.S.2d 96 (2 nti Dept. 2012) is misplaced. Fourth, as a matter oflaw, Plaintiff cannot assert a fraud claim against Hills. Plaintiff claims "Defendants' misrepresentations and omissions include stating, inter alia, that: (i) Plaintiff is not on Defendants' 'preferred list of shops' although no such list exists; (ii) Plaintiff is not on Defendants 1 'preferred lists of shops' -although no such list is provided to Insureds at the time they obtain their insurance or make a claim; (iii) Defendants could not recommend a qualified repair facility upon the consumer's request; (iv) Plaintiffs prices are unreasonably high; (v) Insureds will be forced to pay the difference between what Defendants are willing to pay, and the cost of repair; (vi) Plaintiff refuses to negotiate in good faith with Defendants a reasonable price for repair of Insureds 1 vehicles; (vii) Defendants will cancel insurance policies if Insureds repair their vehicle with Plaintiff; and (ix) Defendants will not conduct business with Plaintiff." These allegations fail to state a claim for fraud against Hills with the requisite particularity mandated by CPLR 3016(b). Furthermore, Plaintiffs mere conclusion that "Defendants, individually and collectively, knowingly and intentionally made misrepresentations or omissions concerning Plaintiff with the intent to deceive," fails to cure the deficiency because these allegations merely allege that Defendants made misrepresentations but do not set forth facts of Hills making any of the alleged misrepresentations set forth above. Thus, Plaintiffhas failed to allege what misrepresentations, if any, were made by the individual defendant Hills, and has not asserted any allegation that would warrant imposing individual liability on Hills. 4

5 Furthermore, as a matter oflaw, a Complaint alleging conspiracy to defraud is insufficiently specific where it contains no factual allegations from which it could be inferred that the defendant had agreed with the codefendants to cooperate in a fraudulent scheme. The Complaint, even read in a light most favorable to Plaintiff, fails to satisfy the specificity and particularity requirements of CPLR 3016(b). It contains no factual allegations from which it can be inferred that Hills, had agreed with the codefendants, to cooperate in a fraudulent scheme. Finally, Plaintiff mistakenly interpreted Hills's argument on injunctive relief. In Plaintiff s opposition papers, Plaintiff contends Hills's sole challenge to the request for injunctive relief rests upon "the contention that the Complaint fails to state a cause ofaction." However, Plaintiffhas simply disregarded the entirety of Hills's argument on dismissing Piaintiffs injunctive relief request. As stated in Hills's Motion to Dismiss the Complaint, as a matter oflaw, in order for a pennanent injunction to be granted, plaintiff must demonstrate that it will suffer irreparable harm absent the injunction. Plaintiffhas not done so and therefore the cause of action for injunctive relief must be denied. Accordingly, it is respectfully submitted that this Court enter an Order granting Hills's motion. ARGUMENT POINT I AN ENTIRE COMPLAINT CANNOT BE PREDICATED SOLELY ON CONCLUSORY STATEMENTS UNSUPPORTED BY FACTUAL ALLEGATIONS While it is well established that on a motion to dismiss a complaint the pleading must be liberally construed (CPLR 3026) and all factual averments of the complaint must be deemed true, an entire complaint cannot be predicated solely on conclusory statements unsupported by 5

6 factual allegations. Sterritt v. Heins Equipment Co., 114 A.D.2d 616, 617, 494 N.Y.S.2d 455 (3 rd Dept. 1985). The statements supporting a cause of action, however, "must be sufficiently particular to give the court and parties notice of the transactions or occurrences to be proved and must support the material elements of the cause of action." Matter of Reden v. Nassau County Serv. Comm A.D.2d 694, 694, 519 N.Y.S.2d 864 (2!,d Dept. 1987). Furthermore, bare legal conclusions are not entitled to the general presumption that the facts pleaded are presumed to be true. Sesti v. N. Bellmore Union Free Sch. Dist A.D.2d 551, 756 N.Y.S.2d 902 (2 nd Dept. 2003); Kantrowitz & Goldhamer. P.C. v. Geiler. 265 A.D.2d 529, 529 (2 nd Dept. 1999); Doria v. Masucci, 230 A.D.2d 764, 646 N.Y.S.2d 363 (2,ld Dept. 1996). Moreover, under New York rules of procedure, "conclusory averments of wrongdoing are insufficient to sustain a cause of action, unless supported by allegations of ultimate facts." Lifshutz v. Adams. 285 N.Y. 180, 185, 33 N.E.2d 83, 85 (1941) affd, 290 N.Y. 707, 49 N.E.2d 635 (1943); Vanscov v. Namic USA Corp A.D.2d 680, 682, 650 N.Y.S.2d 877 (3 rd Dept. 1996), quoting Muka v. Greene County. 101 A.D.2d 965, 477 N.Y.S.2d 444 (3 rd Dept. 1984), lv denied 64 N.Y.2d 610 (1984). The facts as alleged by Plaintiff are insufficient to state a cause of action for Counts One, Two, Four, Five and Six against Hills, since Plaintiffs claims are pleaded in general terms. More specifically, Plaintiff does not set forth facts against Hills that state any cognizable cause of action. Rather, Plaintiffs conclusory and general allegations, inter alia, that defendants "individually and collectively, knowingly and intentionally" made misrepresentations about Plaintiff and that Hills is an "affiliate of Cover Me and NITIC," are pleaded in such general terms as to not set forth any cognizable cause of action against Hills. As such, Plaintiffhas failed to allege any basis upon which to conclude that Hills made any misrepresentation about Plaintiff. In fact, the Complaint against Hills is framed in broad, conclusory tenns and no evidentiary facts 6

7 are pleaded to show Hills violated General Business Law 349 or 350, or committed fraud, injurious falsehood, or tortious interference with prospective business advantage. Here, the only "incident" identified with respect to such general averments of a violation of General Business Law 349 or 350, fraud, injurious falsehood, or tortious interference with prospective business advantage, are Mr. Levy's alleged statements on November 27, However, a clear reading of these statements shows that Mr. Levy did not misrepresent anything to the Insured. Thus, the vague and conclusory allegations of wrongdoing Plaintiff alleges Hills was involved in solely by its status as an affiliate to Cover Me, are insufficient, even under the applicable liberal pleadings standards, to "support the material elements of any cognizable causes ofaction" against Hills. Matter of Reden. 133 A.D.2d 694, 694, 519 N.Y.S.2d 864, 865 (2 nd Dept. 1987). Plaintiffs opposition to defendant's Motion to Dismiss the Complaint is likewise deficient in failing to set forth any evidentiary facts to support its alleged causes of action against Hills. A complaint is required to contain statements of sufficient particularity, to give the Court or the parties notice of the transactions and occurrences intended to be proven, along with the material elements of each cause of action. N.Y. C.P.L.R (McKinney). While "material facts need no longer be pleaded under the Civil Practice Law and Rules, the statements and pleadings are still required to be factual, that is, the essential facts required to give 'notice' must be stated. A complaint is insufficient if based solely on conclusory statements, unsupported by factual allegations." Melito v. Interboro. Mutual Indemnity Insurance Company, 73 A.D. 2d 819, 820, 423 N.Y.S.2d 742 (4th Dept. 1979); See also DeMarco v. Nassau Cntv., 18 A.D.2d 999, 238 N.Y.S.2d 537, 538 (2 nd Dept. 1963). Thus, Plaintiffs conclusory assertions, inter alia, that Hills engaged in institutionalized deceptive conduct which misled Plaintiffs customers into believing that they must have their 7

8 vehicles repaired elsewhere, that "Defendant is an 'affiliate' of its co-defendants engaging in collective action on their behalf," that "Defendants, individually and collectively, knowingly and intentionally made false, misleading, and injurious statements concerning the integrity of the Plaintiff," cannot establish any of the following causes of action against Hills: (1) a violation of General Business Law 349 or 350; (2) fraud; (3) injurious falsehood; (4) tortious interference with prospective business advantage; or (5) injunctive relief. Contrary to Plaintiffs persistent contention that because Hills is an affiliate of Cover Me, Hills is responsible for the co-defendants misconduct as well, this allegation is a mere conclusion and is insufficient to sustain a cause of action. Furthermore, Plaintiffs mistaken contention is contradicted by the Court of Appeal's holding in Lifshutz y, Adams, supra. The Court held that conclusory averments of wrongdoing are insufficient to sustain a cause of action, unless supported by allegations of ultimate facts." Lifshutz, 285 N.Y. 180, 185, 33 N.E.2d 83, 85 (1941) affd, 290 N.Y. 707, 49 N.E.2d 635 (1943). Here, Plaintiff seeks to base its entire complaint against Hills on its conclusory statement that Hills is an "affiliate" of the codefendants and thus responsible for their wrongdoing. Plaintiff offers no factual allegations to support this conclusory statement. There are no facts of wrongdoing by Hills alleged in the Complaint and the five causes of action against Hills must be dismissed. The case at bar is analogous to the Court of Appeals case, A.J. Temple Marble & Tile, inc. v. Union Carbide Marble Care. Inc.. 87 N.Y.2d 574, 663 N.E.2d 890, 640 N.Y.S.2d 849 (1996). The defendants in A.J. Temple, moved to dismiss various causes of action in the complaint for failure to establish an essential element of the causes of action against particular defendants. The Court concluded that as to two defendants, the complaint alleges no more than their relationship to the franchisor [Insurer], that is, their position as a controlling person or 8

9 director and officer [adjustment agency]. The Court also held that the conclusory statement that the two particular defendants "participated in and directed the unlawful conduct" is an insufficient factual allegation to establish the essential element of materially aiding under the Franchise Sales Act claim. Id. at 584. Likewise, mere conclusions of affiliation, without alleging facts of specific wrongdoing by Hills are subject to dismissal for insufficiency. The Complaint alleges no facts, but merely the conclusion that since Hills is an "affiliate" of Cover Me, the causes of action set forth in the Complaint can be alleged against Hills as well. Similarly, in Board of Managers of Park Slope Views Condo. v. Park Slope Views. LLC 39 Misc. 3d 1221(A), 972 N.Y.S.2d 142 (Sup. Ct. 2013), the court held that the complaint failed to contain any allegations of fact against certain individual defendants "that would allow any one of these individuals, acting in their representative capacity, to be held personally liable. A member of a limited liability company or corporation cannot be held liable for the company's obligations by virtue of his status as a member thereof." 39 Misc. 3d 1221(A), 972 N.Y.S.2d 142 (Sup. Ct. 2013), quoting Retropolis. Inc.. v. 14th st Dev.. LLC. 17 A.D. 3d 209 (I s t Dept. 2005). Similarly, Hills, as an alleged affiliate to Cover Me, cannot be held liable for Cover Me's conduct by virtue of Hills's status as an affiliate and the conclusory statements alleged in the Complaint are insufficient to sustain any of the five causes of action alleged against Hills and must be dismissed as a matter oflaw. Thus, it is apparent that certain causes of action must be dismissed outright against Hills. The claims of violating General Business Law 349 and 350, fraud, injurious falsehood, tortious interference with prospective business advantage, and injunctive relief must be dismissed as against Hills in accordance with CPLR 3211(a)(7) because the complaint is replete 9

10 with conclusory allegations and fails to allege any transactions or occurrences that gives rise to any cognizable claim. POINT n ABSENT SPECIFIC ALLEGATIONS CONNECTING AN INDIVIDUAL DEFENDANT TO AN ALLEGED FRAUD, IT IS NOT PERMISSIBLE TO DRAW AN INFERENCE OF THE INDIVIDUAL'S KNOWLEDGE OR PARTICIPATION It is not sufficient to merely allege that the individual defendant Hills is an affiliate of its co-defendants, and that a widespread fraudulent scheme took place amongst the co-defendants. There must be specific factual allegations that connect the individual defendant to the fraudulent conspiracy in some manner. CPC International Inc. v. McKesson Corp., 70 N.Y.2d 268, , 514 N.E.2d 116 (1987). Plaintiff, on the other hand, argues, in essence, that it is sufficient to allege that Hills is an affiliate of its co-defendants, without any further detail linking Hills to the fraudulent scheme. This contention finds no support in the law. In CPC International Inc., supra, defendant McKesson and three of its employees were accused of conspiring to drive up the sale price of McKesson's wholly owned subsidiary, CF. Mueller, by knowingly submitting fictitious projections that overstated Mueller's prospects. Plaintiffs alleged a scheme - involving all the defendants - devised and executed for the specific purpose of defrauding the Plaintiffs and others. Id. at 286. Plaintiffs also alleged that, as part of a review of Mueller's expected economic performance in early June 1983, Mueller's executives made a presentation to McKesson's executives predicting a sharp decline in Mueller's profitability; that following this prediction the individual defendants and others attended a conference on June 27 and 28, 1983 at the New York offices of Morgan Stanley to fonnuiate a program for the sale of Mueller at an 10

11 inflated price; that at McKesson's and Blattman's direction defendants Merrick and Brounstein, a Mueller vice-president, and others, from June 30, 1983 through July 1, 1983, created fictitious projections overstating Mueller's business prospects which they knew were at odds with the unfavorable projections of future business prepared by Mueller's executives approximately two weeks earlier. Id, at 274. In holding that the complaint sufficiently stated a claim against the individuals for substantially assisting McKesson's scheme to fraudulently inflate the sale price of Mueller, the Court of Appeals did not countenance a pleading that contained no allegations as to what each of the individual defendants did to assist the fraud. Nor did the Court permit an inference of knowing participation to be inferred simply from the fact that the individuals were members of "top management" (or in our case, "affiliates"). The allegations of substantial assistance were supported by detailed allegations as to what the individual defendants did to aid the fraud. In the present case, those critical allegations are completely lacking. Therefore, for this reason as well, Plaintiffs fraud cause of action against Hills should be dismissed. POINT ill WITH RESPECT TO DEFENDANT HILLS, PLAINTIFF'S RELIANCE ON NORTH STATE AUTOBAHN. INC. IS MISPLACED The entirety of Plaintiffs Opposition is predicated on the holding of North State Autobahn. Inc. v. Progressive Insurance Group Company. 102 A.D.3d 5, 953 NY.S.2d 96 (2 nd Dept. 2012). Plaintiff argues that the unlawful conduct alleged against Hills is identical to the unlawful conduct alleged in North State. Although it may be true that the unlawful conduct alleged against Hills is similar to that alleged against the Progressive defendants in North State, the case at bar is easily distinguishable. 11

12 In North State, the defendants contended that "the conduct at issue was not consumeroriented and that the plaintiffs failed to adequately allege that they suffered an injury as a result of the Progressive defendants 1 allegedly deceptive conduct." Id. at 11. Accordingly, the court decided the merits of the case based on whether consumer-oriented conduct was established and whether plaintiffs suffered an injury as a result of the Progressive defendants 1 allegedly deceptive conduct. Here, however, Hills is not arguing that the alleged unlawful conduct charged against it is not consumer-oriented, rather, Hills is alleging that Plaintiffs collective allegations against the defendants as a whole, is deficient in failing to allege any specific act by Hills Adjustment Bureau, Inc. that was deceptive or misleading in a material way. As such, this is an entirely different argument than what was made in North State. Furthermore, in North State, plaintiff sued Progressive automobile insurers who are involved in the underwriting of automobile insurance policies in the State of New York. Moreover, these defendants "initiated, internally promoted, and advertised a direct repair program by which they contracted with numerous vehicle repair shops regarding rates and tenns of repairs for claimants." Id. at 9. The North State Plaintiff specifically alleged the deceptive practices that the Progressive defendants engaged in with claimants who sought to have their vehicles repaired at the plaintiffs' and other repair shops that did not participate in the direct repair program. Plaintiff further alleged that this conduct was part of an institutionalized program. In the instant matter, these facts simply do not apply to Hills. Hills is an independent adjuster that assesses and adjusts insurance claims and has nothing to do with underwriting automobile insurance policies. Furthennore, the Complaint merely alleges in a conclusory fashion that "Defendants, individually and collectively, disseminated or caused to be disseminated to consumers misrepresentations or omissions which are likely to mislead a 12

13 reasonable consumer." Complaint pg. 13 para. "45". The Complaint also alleges, "Defendants knowingly and intentionally combine and conspire with one another to perpetrate this unlawful scheme." Complaint pg. 5 para. "24". These general allegations, unsupported by any factual allegations in the Complaint, simply cannot set forth a violation of General Business Law 349 or 350, tortious interference with prospective business advantage, or injurious falsehood against Hills. Absent specific allegations of deceptive of misleading conduct by Hills, these causes of action must fail. As argued previously in Hills's Motion to Dismiss, under General Business Law 349, it is well established that a prima facie case requires a showing that the defendant engaged in a consumer-oriented act or practice that was "deceptive or misleading in a material way and that [the] plaintiff has been injured by reason thereof." Deceptive acts are defined as those that are "likely to mislead a reasonable consumer acting reasonably under the circumstances." Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank. 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995); Beniaminov v. Republic Ins. Group 241 A.D.2d 473, 474, 660 N.Y.S.2d 148, 149 (2 nd Dept. 1997). Furthermore, in Beniaminov. this Court held that "Plaintiff may not maintain a cause ofaction under General Business Law 349 where... she has failed to identify any 'material' 'deceptive acts' engaged in by the defendant." 241 A.D.2d 473, 474, 660 N.Y.S.2d 148, 149 (2 nd Dept. 1997). The facts alleged in North State were sufficient to maintain the causes of action against the defendants because they specifically pleaded the material, deceptive acts engaged in by the defendants. Here, however, the factual allegations set forth in the Complaint are insufficient to show that Hills engaged in misleading or deceptive conduct and do not state a cognizable cause 13

14 of action under General Business Law 349 or 350, nor do they state a cognizable tortious interference with prospective business advantage or injurious falsehood cause of action. Moreover, with respect to the injurious falsehood claim, this Court concluded that the statements made in North State that indicated that the plaintiffs were a difficult shop and were difficult to deal with, were "statements of opinion which were not actionable." North State, supra, 102 A.D.3d 5, 10, 953 NY.S.2d 96, 100 (2 nd Dept. 2012). Similarly, in the case at bar, the allegations in the Complaint set forth facts which illustrate that Mr. Levy's statements amounted to no more than statements of opinion; thus, his statements are not actionable. POINT IV A COMPLAINT ALLEGING CONSPIRACY TO DEFRAUD IS INSUFFICIENTLY SPECIFIC WHERE IT CONTAINS NO FACTUAL ALLEGATIONS FROM WHICH IT COULD BE INFERRED THAT THE DEFENDANT HAD AGREED WITH THE CODEFENDANTS TO COOPERATE IN A FRAUDULENT SCHEME Under New York law, a cause of action for fraud must allege, with respect to each defendant, "a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury." Lama Holding Co. v. Smith Barney, inc.. 88 N.Y.2d 413, 421, 668 NE.2d 1370, 1373, 646 N.Y.S.2d 76, 80 (1996). A cause of action for fraud also must be pleaded with particularity, and complaints for fraud that fail to meet this standard are consistently dismissed. See CPLR 3016(b); Edison Stone Corp. v. 42nd Street Dev. Corp A.D.2d 249, 257, 538 N.Y.S,2d 249, 254 (l s l Dept. 1989) (CPLR 3016(b) "imposes a more stringent standard of pleading than the generally applicable notice ofthe transaction rule of CPLR 3103, and complaints based on fraud... which 14

15 fail in whole or in part to meet this special test of factual pleading have consistently been dismissed.") (citations and internal punctuation omitted). To meet the heightened pleading standard in a fraud action, a plaintiff must state the allegations that are specifically attributable to each defendant. See, e.g., Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 57, 698 N.Y.S.2d 615, 621 (1999); Fitch v. TMF Svs. inc A.D.2d 775, 777, 707 N.Y.S.2d 539, 541 (3 rd Dept. 2000); Abbott v. Herzfeld & Rubin. P.C, 202 A.D.2d 351, 351, 609 N.Y.S.2d 230, 231 (T sl Dept. 1994). The complaint must "set forth specific and detailed factual allegations that [a] defendant personally participated in, or had knowledge ofany alleged fraud." Handel v. Bruder. 209 A.D.2d 282, , 618 N.Y.S.2d 356, 356 (1 st Dept. 1994). In the case at bar, the Complaint fails to meet the required pleading standard for fraud as against Hills. The Complaint totally fails to allege that Hills made any of the alleged misrepresentations that: (i) Plaintiff is not on Defendants' 'preferred list of shops' although no such list exists; (ii) Plaintiff is not on Defendants' 'preferred lists of shops' -although no such list is provided to Insureds at the time they obtain their insurance or make a claim; (iii) Defendants could not recommend a qualified repair facility upon the consumer's request; (iv) Plaintiffs prices are unreasonably high; (v) Insureds will be forced to pay the difference between what Defendants are willing to pay, and the cost of repair; (vi) Plaintiff refuses to negotiate in good faith with Defendants a reasonable price for repair of Insureds' vehicles; (vii) Defendants will cancel insurance policies if Insureds repair their vehicle with Plaintiff; and (ix) Defendants will not conduct business with Plaintiff." Complaint pg. 13 para. "46". Rather, this is a case where Plaintiff has brought several causes of action against Hills as an individual defendant, without alleging facts to support either their participation in, or knowledge of the alleged fraud. 15

16 Plaintiff attempts to overcome their pleading defect by making several key allegations against all "Defendants" collectively, without specifying a role of the Individual Defendant Hills. Plaintiff should not be permitted to avoid their obligation of pleading specific facts about the Individual Defendant Hills, through the simple expedient of making summary, nonspecific allegations against "Defendants" as a group, without alleging any specifics about what Hills is alleged to have done. This type of cavalier reference to the "Defendants" generally, should not be peniiitted to substitute for the specific factual allegations that CPLR 3016(b) requires. In Rothschild v. World-Wide Automobiles Corp A.D.2d 861, 264 N.Y.S.2d 705 (l s l Dept. 1965), the court held that "mere conclusory allegations of a conspiracy without a showing of unlawful or wrongful acts by [a defendant] do not create a cause of action." Id. at 861. Furthermore, in Harry Levine Corp. v. K. Gimbel Accessories, Inc., 41 A.D.2d 637, 341 N.Y.S.2d 114 (1 st Dept. 1973), the court held that the complaint in an action for damages based on fraud was insufficient where it alleged a conspiracy between the defendants to commit a fraud in a conclusory fashion. Similarly, Plaintiffs contention that Hills and its co-defendants conspired to take part in this fraudulent scheme is pleaded in a conclusory fashion and does not support a cause of action. Likewise, this Court held in Ferguson v. Meridian Distribution Services, inc A.D.2d 642, 548 N.Y.S.2d 233 (2 nd Dept. 1989). that a complaint alleging conspiracy to defraud was insufficiently specific where it contained no factual allegations from which it could be inferred that the defendant had agreed with its codefendants to cooperate in such a fraudulent scheme. Id. See also Abrahami v. UPC Const. Co.. Inc A.D.2d 180, 574 N.Y.S.2d 52 (l s l Dept. 1991)( holding "While [one defendant] was alleged to have made false representations to plaintiffs on various occasions, the verified complaint failed to satisfy the specificity and particularity 16

17 requirements of CPLR 3013 and 3016(b) as to the other moving defendants, since there were no factual allegations alleging that these defendants had made any fraudulent representation to plaintiff or allegations of fact from which it could be inferred that they had agreed or entered into an understanding with the other defendant against which particular acts of fraud were alleged to cooperate in any fraudulent scheme."). Accordingly, Plaintiffs fraud case of action must be dismissed. POINT V PLAINTIFF HAS NOT STATED AN INJUNCTIVE RELIEF CAUSE OF ACTION AS PLAINTIFF HAS NOT ALLEGED IRREPERABLE INJURY Plaintiff mistakenly interpreted Hills's argument on injunctive relief. In Plaintiffs opposition papers, Plaintiff contends Hills's sole challenge to the request for injunctive relief rests upon "the contention that the Complaint fails to state a cause of action." However, Plaintiff has simply disregarded the entirety of Hills's argument on dismissing Plaintiffs injunctive relief request. As stated in Hills's Motion to Dismiss the Complaint, as a matter oflaw, in order for a pennanent injunction to be granted, plaintiff must demonstrate that it will suffer irreparable hann absent the injunction. Plaintiff has not done so and therefore the cause of action for injunctive relief must be denied. As previously argued, Plaintiff has failed to demonstrate a threatened or probable violation by Hills of their property rights. As stated above, Plaintiff has failed to establish the elements for a cause of action sounding in fraud, injurious falsehood, tortious interference with prospective business advantage, and a violation of General Business Law 349 or 350. As such, Plaintiffhas failed to allege facts sufficient to plead irreparable injury or damages. Mere conclusory statements set forth in a Complaint will not suffice. The Complaint must contain factual detaii. See U.S. Re Companies. Inc. v. Scheerer. 41 A.D.3d 152, 838 N.Y.S.2d 37 (1 st 17

18 Dept. 2007)(holding that Plaintiffs preliminary injunction must be reversed because Plaintiff did not provide any factual support of the likelihood of success of its claim on the merits or irreparable injury); Village of Honeoye Falls v. Elmer. 69 A.D.2d 1010, 416 N.Y.S.2d 148 (4 th Dept. 3979)(holding that "the conclusory statements submitted by plaintiff in support of its application are without factual evidentiary detail and fail to establish that irreparable hann will occur in the absence of injunctive relief"). Since Plaintiff fails to properly plead damages, there is no basis for Plaintiffs request for an injunction. Accordingly, Plaintiffs request for injunctive relief must be denied. CONCLUSION It is apparent that certain causes of action must be dismissed outright for failing to meet the threshold for an analysis under CPLR 323 1(a)(7). The causes of action of vioiation of GBL 349 and 350, fraud, injurious falsehood, tortious interference with prospective business advantage and injunctive relief against the individual defendant Hills must be dismissed as the complaint fails to allege any transactions or occurrences that give rise to any cognizable claim against Hills. The complaint fails to contain any allegations of fact that would allow Hills, as an affiliate of Cover me and NITIC, to be held individually liable. Furthennore, conclusory avennents of wrongdoing are insufficient to sustain a cause of action, unless supported by allegations of ultimate facts and Plaintiffhas failed to allege these necessary facts. The fraud cause of action against Hills must be dismissed because Plaintiffhas failed to allege with requisite specificity the circumstances constituting the alleged fraud. Furthennore, Plaintiffs contention that Hills and its co-defendants conspired to take part in a fraudulent scheme is pleaded in a conclusory fashion and does not support a cause ofaction. 18

19 Plaintiff failed to allege a violation of General Business Law 349 or 350 by Hills because the Complaint fails to allege Hills engaged in any deceptive or misleading conduct as required by General Business Law 349 and the Complaint fails to allege Hills engaged in false advertising as required by General Business Law 350. As such, these claims must be dismissed. Plaintiffs injurious falsehood cause of action against Hills must be dismissed because statements of opinion are not actionable. Lastly, Plaintiffs prayer for injunctive relief must be dismissed against Hills because Plaintiffhas not alleged facts sufficient to show irreparable injury. For all of the foregoing reasons, it is respectfully requested that this Court enter an Order granting the instant motion. Dated: New York, New York May 6,2014 SULLIVAN & KLEIN, LLP Attorneys for Defendant HILLS ADJUSTMENT BUREAU, INC. Robert M. Sullivan, Esq. Elizabeth A. Scoditti, Esq. 980 Avenue of the Americas Suite 405 New York, New York (212) File No.:

20 TO: (VIA ECF) ANSELL, GRIMM & AARON, P.C. Attorneys for Plaintiff Pesce Brothers Inc., d/b/a Car Craft Truck Works 341 Broad Street Clifton, New Jersey (973) Attention: Joshua S. Bauchner, Esq. GINSBERG, BECKER & WEAVER, LLP Attorneys for Defendants Cover Me Insurance Agency of NJ Inc., National Independent Truckers insurance Company, RRG, and Michael J. Poller 150 Broadway, Suite 2205 New York, New York (212) Attention: Robert Becker, Esq. 20