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NORTHWESTERN MUT. LIFE INS. CO. v. WENDER

September 17, 1996

THE NORTHWESTERN MUTUAL LIFE INSURANCE CO., Plaintiff, against RICHARD WENDER, Defendant.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge.

 Plaintiff brings this action for a declaration that the Defendant is not disabled; and accordingly, that Plaintiff is not obligated to pay disability benefits. Plaintiff moves to dismiss Defendant's counterclaims and strike paragraph 68 of the Answer.

 I. BACKGROUND

 Plaintiff is incorporated, and has its principal place of business in Wisconsin. (Answer P 28.) Defendant is a resident of New York. (Id. P 30.) Defendant was an ophthalmic microsurgeon, until May 4, 1989, when he was involved in a water-skiing accident resulting in his inability to perform surgery. (Id. PP 37, 41, 45.) Prior to the accident, in 1988, and up until October 24, 1989, Defendant was employed by Dr. David Brown in Florida. (Id. PP 38, 46.) Defendant has not been "gainfully employed" since then. (Id. P 47.)

 Defendant applied for and received a disability policy in 1987. (Id. PP 31-32.) In March 1990, Defendant submitted a request for disability benefits to the Plaintiff, and received same in approximately September 1991. *fn1" (Id. PP 48-49, 58.) Defendant provided several forms of information to the Plaintiff to enable it to evaluate his claim, (Id. PP 49-52), and he submitted to a electromyograph. (Id. P 56.) Subsequently, Defendant was asked to submit to further examinations and submit further information, some of which he refused to do, after inquiry. (Id. PP 59-64.) Payments then ceased in September 1993. (Id. P 66.) Requests for more information and examinations continued thereafter. (Id. PP 69-79.)

 II. DISCUSSION

 "On a motion to dismiss under Rule 12(b)(6), the court must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the [pleader.]" Bolt Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d Cir. 1995) (citations omitted); Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). "The district court should grant such a motion only if, after viewing [the pleader's] allegations in this favorable light, 'it appears beyond doubt that the [pleader] can prove no set of facts in support of his claim which would entitle him to relief.'" Walker v. City of N.Y., 974 F.2d 293, 298 (2d Cir. 1992) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957))), cert. denied, 507 U.S. 961, 122 L. Ed. 2d 762, 1993, 113 S. Ct. 1387 (1993). Here, Defendant's facts as alleged in the counterclaims will be looked at in the most favorable light. Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 174, 15 L. Ed. 2d 247, 86 S. Ct. 347 (1965); Schatt v. Curtis Management Group, Inc., 764 F. Supp. 902, 915 (S.D.N.Y. 1991); Reeves v. American Broadcasting Cos., 580 F. Supp. 84, 89 (S.D.N.Y.), aff'd, 719 F.2d 602 (2d Cir. 1983).

 A. Third Counterclaim

 Plaintiff moves to dismiss Defendant's third counterclaim which alleges a cause of action pursuant to New York General Obligations Law ยง 349, (Answer P 92-96), for failure to state a claim. *fn2"

 Section 349 entitled "Deceptive acts and practices unlawful," states:

 
(a) Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.

 The statute creates a private right of action and a Plaintiff can recover her actual damages, or $ 50.00, whichever is greater. If the Court finds the Defendant acted wilfully or knowingly, treble damages may be awarded, up to $ 1,000.00. Attorney's fees may also be awarded.


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