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FIREMAN'S FUND INS. CO. v. KAPRALOS

October 16, 1996

FIREMAN'S FUND INSURANCE COMPANY, Plaintiff, against ROSE KAPRALOS and G. HARRY KAPRALOS, Defendants.


The opinion of the court was delivered by: HURLEY

 HURLEY, District Judge

 Presently pending before this Court is plaintiff's motion which seeks:

 1) an order, pursuant to Civil Rule 3(j) of the Local Rules of the United States District Court for the Southern and Eastern Districts of New York, granting reargument and reconsideration of the Court's decision of July 20, 1995, which granted defendants' motion to dismiss plaintiff's fraud claim, and denied plaintiff's motion for an order of attachment;

 2) an order, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, for leave to amend the complaint; and

 3) a writ of attachment of Rose Kapralos's real property at 136 Bacon Road in Old Westbury, New York, as well as the home's contents, pursuant to Rule 64 of the Federal Rules of Civil Procedure and New York Civil Practice Law and Rules §§ 6201.

 Also pending is a cross-motion by defendants, made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the remainder of plaintiff's original complaint, coupled with a request that the Court deny plaintiff's motion to file an amended pleading upon the ground that it would be a futile act.

 For the reasons set forth below, plaintiff's applications to file an amended complaint and for an order of attachment are granted; its request that the Court reconsider its earlier decision is denied. Defendants' cross-motion is denied.

 INTRODUCTION

 Defendants Rose and G. Harry Kapralos have resided since 1983 at 136 Bacon Road, Old Westbury, New York, with title being in the name of Rose Kapralos. The residence, as well as certain of its contents, were insured against fire loss by the Fireman's Fund. The policy went into effect on December 2, 1986.

 A fire occurred at the Kapralos' residence on November 29, 1987. As a result, Fireman's Fund made a series of payments to Rose Kapralos totalling $ 1,310,662.15, with the last payment being made in 1988.

 In 1994, Fireman's Fund commenced an action to recover the monies paid upon the ground that Rose and G. Harry Kapralos, "intentionally and pervasively misrepresented to Fireman's Fund the extent of the damage that the fire caused, and the cost to repair and replace what was damaged." (See Compl. P 1.) The complaint set forth causes of action for "Common Law Fraud," "Conversion," "Money Paid by Mistake," and "Constructive Trust."

 Defendants moved to dismiss the common law fraud cause of action in the complaint, alleging, inter alia, that its claims were contractual in nature, and thus barred by the six year statute of limitations applicable to such actions. After juxtapositioning the substance of the count with the holding in Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 11 N.E.2d 902 (1937), the Court concluded that the cause of action denominated as "Common Law Fraud" was in essence a contractual claim given its assertion that all of the monies paid were recoverable by the carrier due to the insured's alleged breach of a policy provision regarding the truthfulness of the information contained in her proof of loss. As a result, that cause of action was dismissed.

 Defendants counter by cross-moving to dismiss the remaining causes of action in the original complaint, maintaining that all -- not just the fraud claim -- sound in contract and, accordingly, are time-barred. Their argument continues that even if, arguendo, the causes of action are legitimately labeled as fraud claims, they again are time-barred because plaintiff either knew, or should have known of the alleged fraudulent submissions and statements in 1988. In support of that second prong of defendants' ...


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