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Ripka v. Safeco Insurance

United States District Court, N.D. New York

May 26, 2015

JO-ANN D. RIPKA, Plaintiff,
SAFECO INSURANCE, also known as Peerless Insurance Company, Defendants.

OFFICE OF DAVID P. ANTONUCCI, DAVID P. ANTONUCCI, ESQ., Watertown, NY, Attorneys for Plaintiff.

JAFFE, ASHER LAW FIRM, MARSHALL T. POTASHNER, ESQ., New York, NY, Attorneys for Defendants.


DAVID N. HURD, District Judge.


Plaintiff Jo-Ann Ripka ("Ripka" or "plaintiff") filed this action in New York State Supreme Court, Oswego County, seeking to recover damages from the alleged breach of a homeowner's insurance policy issued by defendant Peerless Insurance Company ("Peerless"). Defendant timely removed the case to federal court and now moves for partial dismissal of plaintiff's complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). The motion has been fully briefed and will be considered on the basis of the submissions without oral argument.


The following factual allegations are assumed true for purposes of this motion. Ripka, a resident of Pulaski, New York, purchased a homeowner's insurance policy from Peerless, a New Hampshire corporation based in Boston, Massachusetts.[1] Compl. ¶¶ 4-5; Def.'s Notice of Removal ¶¶ 7-8; see also Compl., Ex. A, ECF No. 9-1 (the "Homeowner's Policy").

In April 2012, a plumbing leak caused substantial damage to Ripka's home and its contents. Compl. ¶ 12. Although plaintiff duly reported the damage in accordance with the Homeowner's Policy, Peerless initially failed to dispatch any representatives to inspect the damage. Id . ¶¶ 13-16. Eventually, at plaintiff's repeated urging, Peerless sent a contractor to "inspect only limited physical damages to the real property." Id . ¶ 16.

Ripka claims that, in her repeated conversations with Peerless's representatives, each uniformly "claimed the damages were within the scope of coverage and [assured plaintiff she] would be promptly compensated." Compl. ¶ 17. However, Peerless allegedly engaged in a series of delaying tactics-continually asking for the same information, switching adjustors without notice, refusing to communicate with plaintiff for long stretches of time, and refusing to inspect the premises-before ultimately failing to "pay the claim in full or tender interest for the unsubstantiated delays in payment." See id. ¶ 18.


To survive a Rule 12(b)(6) motion to dismiss, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although a complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief" (FED. R. CIV. P. 8(A)(2)), more than mere conclusions are required. Indeed, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

Dismissal is appropriate only where plaintiff has failed to provide some basis for the allegations that support the elements of his claims. See Twombly, 550 U.S. at 570 (requiring "only enough facts to state a claim to relief that is plausible on its face"). When considering a motion to dismiss, the pleading is to be construed liberally, all factual allegations are deemed to be true, and all reasonable inferences must be drawn in the plaintiff's favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).


Ripka's complaint is hardly a model of clarity. Although the document's capitalized subheadings suggest she seeks to assert only two causes of action, a careful review of the complaint reveals that she has attempted to enumerate quite a few more. All told, plaintiff appears to allege: (1) a series of violations of 11 N.Y.C.R.R. § 216 (Compl. ¶¶ 19-34); (2) a breach of the covenant of good faith and fair dealing implicit in the Homeowner's Policy (Compl. ¶¶ 35-36); (3) a breach of the express terms of the Homeowner's Policy (Compl. ¶¶ 39-42); and (4) a violation of N.Y. Gen. Bus. Law § 349 (Compl. ¶¶ 3, 51-60).

Peerless, for its part, has moved to dismiss Ripka's: (1) claims for relief pursuant to 11 N.Y.C.R.R. § 216, arguing New York does not recognize a private right of action under those regulations; (2) claim pursuant to N.Y. Gen. Bus. Law § 349, arguing plaintiff has failed to state a claim under this statute; and (3) claims for recovery of consequential and punitive damages. In other words, ...

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