Wimbish v Crema-Samalya
Categories
Attorneys and Parties
Brief Summary
Insurance adjustment and post-fire property restoration referrals, specifically whether an insurance adjuster could be liable for deceptive practices and fraud after referring an insured to a restoration contractor whose work was allegedly deficient.
The Supreme Court, Kings County, denied Joan Crema-Samalya's motion under New York CPLR 3211(a)(7) [rule allowing dismissal for failure to state a cause of action], allowing the claims for General Business Law § 349 and fraud to proceed against her.
The Appellate Division reversed the order denying dismissal and granted Crema-Samalya's motion to dismiss the complaint insofar as asserted against her.
The plaintiff did not allege any materially misleading conduct sufficient to state a claim under General Business Law § 349 [consumer-protection statute requiring consumer-oriented, materially misleading conduct causing injury], and the fraud claim was pleaded only in conclusory terms without identifying a specific false statement or satisfying CPLR 3016(b) [fraud allegations shall be stated in detail].
Background
After a fire damaged Willie Wimbish's property, he worked with insurance adjuster Joan Crema-Samalya, who was employed by Mountain Valley Indemnity Company. Crema-Samalya connected him with Five Boro Fire Restoration, Inc. (FBFR), and Wimbish contracted with FBFR in January 2018 for restoration work. FBFR worked on the property until November 2019. Wimbish later alleged that, when a licensed contractor inspected the work in March 2020, the work was found to be deficient. He then sued Crema-Samalya and others, asserting, among other claims, deceptive practices and fraud based on her role in referring FBFR and her communications with him.
Lower Court Decision
The Supreme Court, Kings County, denied Crema-Samalya's pre-answer motion to dismiss the complaint insofar as asserted against her. The motion challenged the sufficiency of the claims for violation of General Business Law § 349 and fraud.
Appellate Division Reversal
The Appellate Division held that even accepting the complaint, the plaintiff's affirmation, and the text messages as true, the pleadings still failed to state a viable claim against Crema-Samalya. The court found that the allegations that she provided 'misleading information' to induce the plaintiff to hire FBFR were conclusory and did not identify conduct likely to mislead a reasonable consumer. The court also found that her text message about submitting expenses to the insurer could not reasonably be read as a representation that she had verified permits or was managing FBFR's work. As to fraud, the court held that the complaint merely recited the elements and that neither the complaint nor the plaintiff's affirmation identified a particular false statement of fact. The court therefore reversed and dismissed the complaint as against Crema-Samalya.
Legal Significance
This decision emphasizes that a plaintiff opposing dismissal under New York CPLR 3211(a)(7) [rule allowing dismissal for failure to state a cause of action] may use affidavits to supplement a pleading, but conclusory allegations still will not save claims under General Business Law § 349 [consumer-protection statute requiring consumer-oriented, materially misleading conduct causing injury] or common-law fraud. The case also underscores that fraud allegations must comply with CPLR 3016(b) [fraud allegations shall be stated in detail] by identifying specific misrepresentations or omissions rather than relying on generalized accusations.
A referral by an insurance adjuster to a contractor, without concrete allegations of specific deceptive statements or detailed fraudulent misrepresentations, is not enough to sustain claims for deceptive practices or fraud.