Superior Officers Council Health & Welfare Fund, Et v. Empire Healthchoice Assurance

This memorandum is uncorrected and subject to revision before publication in the New York Reports.

MEMORANDUM:

The order of the Appellate Division should be affirmed, with costs.

The Appellate Division properly construed the plain language of the agreement and determined that plaintiffs' failure to adopt a drug formulary bars them from sharing in certain rebates that defendant received from prescription drug manufacturers. Additionally, plaintiffs fail to state a cause of action for breach of fiduciary duty separate and apart from their breach of contract claim. On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs, in a memorandum.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

20111121