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