On June 17, 2021, Justice Colaiacovo of the Erie County Commercial Division issued a decision in Thrill 13014, LLC v. Finger Lakes Fire & Cas. Co., 2021 NY Slip Op. 32020(U), holding that a complaint alleging fraud in the issuance of insurance policies alleged to have been made with many members of the public failed to state a claim under GBL 349 because the claims still were a private dispute, explaining:
Although the Complaint’s second cause of action asserts a claim under §349 of New York’s General Business Law, the Defendant does not touch on the issue in its motion to dismiss and Plaintiff similarly does not address the issue in its opposition.
So as not to leave any loose ends, the Court will address the §349 cause of action. In their complaint, Plaintiffs allege that Defendant’s statements in the DFS Response sent to policyholders were inaccurate and misleading. Furthermore, Plaintiffs allege that Defendant did not make coverage determinations based on particular facts and circumstances presented by Plaintiffs’ claims.
It is well settled that, although the alleged conduct need not be repetitive or recurring to qualify as consumer-oriented, a plaintiff must demonstrate that the acts or practices have a broader impact on consumers at large and, thus, private contract disputes, unique to the parties, do not fall within the ambit of the statute.
In JD & K Associates, the defendant insurance company disclaimed coverage on the particular facts concerning the nature of plaintiffs property damage and the language in the policy. The Fourth Department concluded that defendants established that the conflict here stems from a private contract dispute over policy coverage and the processing of a claim which is unique to these parties, not conduct which affects the consuming public at large. The case before this Court likewise stems from a private dispute outside the ambit of §349 of the General Business Law.(Internal quotations and citations omitted).