Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SICHEL v. UNUM PROVIDENT CORPORATION

April 29, 2002

HOWARD SICHEL, PLAINTIFF,
V.
UNUM PROVIDENT CORPORATION AND THE PAUL REVERE LIFE INSURANCE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.:

OPINION AND ORDER

On June 21, 2001, Howard Sichel sued UnumProvident Corporation ("Unum"), The Paul Revere Life Insurance Company ("Paul Revere"), and Dr. Richard M. Bochner for: 1) breach of contract, 2) fraud, 3) negligence on the part of Dr. Bochner, and 4) violation of New York General Business Law ("GBL") § 349. Unum and Paul Revere now move to dismiss Sichel's second and fourth claims*fn1 pursuant to Federal Rule of Civil Procedure 12(c) and to dismiss Sichel's requests for punitive and treble damages. Sichel seeks leave to amend his Complaint. Defendants also move to impose sanctions on Sichel for attorneys' fees and expenses pursuant to Federal Rule of Civil Procedure 11 ("Rule 11"). For the reasons stated below, defendants' motion to dismiss is granted in its entirety. Sichel's motion for leave to amend his Complaint is denied in part and granted in part. Defendants' motion for Rule 11 sanctions is denied.

I. FACTUAL BACKGROUND

Sichel alleges that he suffered an injury on March 10, 1996, that left him unable to continue in his former occupation as a chiropractor. See Complaint ("Compl.") ¶¶ 6, 8. At the time of his injury, Sichel held disability policies from both defendants. See id. ¶ 7; Def. Mem. at 1. He then filed claims under these policies. See Compl. ¶¶ 8-9; Def. Mem. at 1. After a medical examination by Dr. Bochner on March 16, 1998, Paul Revere and Unum began making disability payments to Sichel. See Compl. ¶¶ 10, 13; Def. Mem. at 1.

After this examination, however, Paul Revere secretly videotaped Sichel's activities and then asked Dr. Bochner to reevaluate his injuries. See Compl. ¶¶ 11-12; Def. Mem. at 1. Dr. Bochner examined Sichel again on July 27, 1999, and determined that he was not disabled. See Compl. ¶¶ 12-14; Def. Mem. at 1. Paul Revere and Unum ceased making disability payments in August 1999. See Compl. ¶¶ 10, 16; Def. Mem. at 1.

II. LEGAL STANDARD

The standard applicable to a motion to dismiss under Rule 12(c) is the same as that under Rule 12(b)(6). See Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) "is proper only where `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Strougo v. Bassini, 282 F.3d 162, 167 (2d Cir. 2002) (quoting Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999)). The task of the court in ruling on a Rule 12(b)(6) motion is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (internal quotation marks omitted).

To rule on a 12(b)(6) motion, a court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the nonmoving party's favor. See Kalnit v. Eichler, 264 F.3d 131, 137-38 (2d Cir. 2001). Nevertheless, to survive a motion to dismiss, "[plaintiff's] claims must be "supported by specific and detailed factual allegations," not stated `in wholly conclusory terms.'" Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)). Dismissal therefore is "appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Friedl, 210 F.3d at 83 (quotation marks omitted).

III. DISCUSSION

A. Sichel's Second Claim

In his second cause of action, Sichel claims that defendants, including Dr. Bochner, "conspired to defraud" him.*fn2 See Compl. ¶¶ 23-31. Sichel alleges that the insurance companies agreed on a "scheme" with Dr. Bochner whereby they would hire him to perform a medical examination on Sichel. Id. ¶ 24. Dr. Bochner would then diagnose Sichel as not disabled so that the insurance companies would no longer be required to make disability payments. See id. ¶¶ 24-26.

1. Fraud

Under New York law, to plead a case of fraud, "the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury." Lama Holding Co. v. Smith Barney, Inc., 88 N.Y.2d 413, 421 (1996). In his Complaint, Sichel alleges that Dr. Bochner "issue[d] a false report, based on no rational medical basis, claiming [he] was able to work in his profession and occupation, and the insurance carrier defendants then used this as a means of cutting off [Sichel's] benefits." Compl. ¶ 27. Sichel does not allege, however, that he relied on this misrepresentation by the insurers, or that defendants' alleged misrepresentation was intended to induce him to rely on it.

New York law "preclude[s] fraud actions where the `only fraud charged relates to a breach of contract.'" Lomaglio Assoc., Inc., v. LBK Mktg. Corp., 892 F. Supp. 89, 94 (S.D.N Y 1995) (quoting Miller v. yolk & Huxley, Inc., 355 N.Y.S.2d 605 (1st Dep't 1974)). "`[A] contract action cannot be converted to one for fraud merely by alleging that the contracting party did not intend to meet its contractual obligations.'" Hanft Byrne Raboy & Partners, Inc. v. Matsushita Elec. Corp. of America, No. 00 Civ. 2990, 2001 WL 456346, at *5 (S.D.N.Y. May 1, 2001) (quoting Rocanova v. Equitable Life Assurance Soc'y, 83 N.Y.2d 603, 614 (1994)). "General allegations that defendant entered into a contract while lacking the intent to perform it are insufficient to support" a claim for fraud. New York Univ. v. Cont'l Ins. Company, 87 N.Y.2d 308, 318 (1995). In New York University, plaintiff alleged that its insurance providers engaged in a `sham' investigation to perpetuate their allegedly fraudulent scheme." Id. at 319. The New York Court of Appeals held that this allegation "merely raise[d] a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.