may not be pleaded as a tort claim "unless a legal duty independent of the contract itself has been violated." Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 656, 516 N.E.2d 190 (1987). Here, each of York Hunter's tort claims fails to allege breach of such an independent duty, fails to allege at least one essential element of the tort asserted, or both.
If Liberty had any duty to include YHFS as a named insured, that duty arose exclusively from the alleged agreement with York Hunter to do so. Hence, the assertion that Liberty is liable in negligence for the failure to include YHFS is merely a reiteration of the breach of contract allegations with the added characterization of Liberty's actions as negligent or grossly negligent. This is insufficient to state a claim upon which relief may be granted because no duty independent of the contract existed. See Clark-Fitzpatrick, 70 N.Y.2d at 389, 521 N.Y.S.2d at 656. The fifth counterclaim therefore cannot stand.
The fourth counterclaim is for prima facie tort, the elements of which are (1) intentional infliction of harm (2) causing special damages (3) without excuse or justification (4) by an act or acts that otherwise would be lawful. E.g., Sigmon v. Parker Chapin Flattau & Klimpl, 901 F. Supp. 667, 680 (S.D.N.Y. 1995). In order to satisfy the third element, the plaintiff must allege and prove that the conduct complained of was "done with the sole intent to harm." Id. at 681. "Motives such as profit, self-interest, or business advantage will defeat a prima facie tort claim." Id.; accord, Marcella v. ARP Films, Inc., 778 F.2d 112, 119 (2d Cir. 1985). York Hunter has failed to plead or adduce proof of the disinterested malevolence that is essential to state a claim for prima facie tort.
The fraud claim too is insufficient. While a promise made without the intention to perform may be actionable, one cannot state a claim for fraud based on such a theory simply by making a conclusory assertion that the promisor did not intend to perform at the time the promise was made. Lomaglio Associates, Inc. v. LBK Marketing Corp., 892 F. Supp. 89, 94 (S.D.N.Y. 1995) (fraud based on contract must be pleaded with particularity, including circumstances showing intent to deceive); Caniglia v. Chicago Tribune - New York News Syndicate, Inc., 204 A.D.2d 233, 612 N.Y.S.2d 146 (1st Dep't 1994) (same). Here, McGrath's November 9, 1993 promise to add YHFS as an additional insured with respect to the 1993-94 Policy did not extend in terms to the 1994-95 Policy here at issue. Even if it did, there is nothing whatever in the counterclaim or in York Hunter's evidence that would permit an inference that Liberty, at the time McGrath wrote, did not intend to perform whatever promise he made.
For the foregoing reasons, plaintiffs' motion for partial summary judgment is granted as follows:
(1) With respect to the first counterclaim, it is adjudged that YHFS is not a named insured listed in the declarations to the 1994-95 Policy, as written and, in consequence, that plaintiffs are not obliged pursuant to that Policy, as written, to defend or indemnify the two personal injury suits that are the subject of this case.
(2) The second, third, fourth, fifth and sixth counterclaims are dismissed. Defendant's cross-motion for partial summary judgment is denied.
Inasmuch as defendant has raised a genuine issue of material fact as to whether the failure of the 1994-95 Policy to list YHFS in the declarations as a named insured was the product of mutual mistake, defendant is granted leave to file an amended answer and counterclaim asserting a claim for reformation of the 1994-95 Policy on that ground, within 10 days of the date hereof.
Dated: November 26, 1996
Lewis A. Kaplan
United States District Judge