M.V.B. Collision Inc. d/b/a Mid Island Collision, as assignee of Luanne Dresher, as assignee of Joseph DArgenio, and as assignee of Charles Cardile, Plaintiff(s)
Allstate Insurance Company, Kaysha Cordero, Philip Podberesky, John Pluchino and Norman Wong, Defendant(s)
Plaintiff: Steven F. Goldstein, LLP.
Defendants: Rivkin Radler, LLP.
following named papers numbered 1 to 4 submitted on this
Motion for Partial Dismissal, Severance, Costs and Sanctions,
on January 6, 2017
of Motion and Supporting Documents 1
Law in Support of Motion 2
in Opposition 3
Papers to Motion 4
Collision Inc. d/b/a Mid Island Collision, as assignee of
Luanne Dresher, as assignee of Joseph Dargenio and as
assignee of Charles Cardile, has commenced an action against
Allstate Insurance Company (hereinafter referred to as
"Allstate"), Kaysha Cordero, Philip Podberesky,
John Pluchino, and Norman Wong, by the Verified Complaint,
dated October 31, 2016.
in this action is the assignee of seven causes of action
concerning property damage to automobiles insured by
Defendants are Allstate and four insurance adjusters who are
employed by Allstate. The insurance adjusters allegedly
negligently adjusted the amount of estimates for the
Defendants now move for an order pursuant to CPLR Rule
3211(a)(3) and (a)(7) dismissing, with prejudice, the first,
fourth, fifth, sixth, and seventh causes of action, as well
as the claims for punitive damages. Defendants also seek an
order of severance pursuant to CPLR § 603, severing the
second and third cause of action and an order for sanctions.
first cause of action is based upon breach of contract as to
Luanne Dresher, who owned a 2016 Mercedes Benz C300, to which
extensive repairs were made by Plaintiff, at the claimed cost
of $7, 250.50. The said Mercedes was involved in an accident
with Allstate's insured Marilyn Mandel, on July 7, 2016.
It is alleged that Allstate had three separate adjusters who
wrote an estimate in the amount of $697.45, and supplemental
estimates in the amounts of $1, 637.45, $588.36 and $1,
states that Allstate issued a policy of insurance to its
insured Marilyn Mandel, which provided coverage to
third-party claimants such as Luanne Dresher (intended
beneficiary). The policy provided coverage as set forth in
paragraph 53 of the Verified Complaint, as follows:
"That the policy of insurance issued to Defendant
ALLSTATE's insured, Marilyn Mandel, provided coverage to
third-party claimants, including Plaintiff's subrogor,
Luanne Dresher, under 'Part V - Protection Against Loss
of the Auto: Auto Collision Insurance - Coverage DD', as
'We will pay for direct and accidental loss to your
insured auto or a non-owned auto (including loss to an
attached trailer) from a collision with another object or by
upset of that auto or trailer...' "
alleged that Allstate breached its contractual obligations
under said policy by failing to pay the full amount due under
said policy to Luanne Dresher who assigned her claim to
"That in failing to pay the full cost of the repairs to
LUANNE DRESHER'S motor vehicle, Defendant, ALLSTATE
INSURANCE COMPANY, acted in breach of the aforementioned
physical damage collision coverage provision of the insurance
policy purchased by Marilyn Mandel and inuring to the benefit
of LUANNE DRESHER, and caused Plaintiff, M.V.B. COLLISION
INC., and its assignor, LUANNE DRESHER, to incur economic
That the amount offered by Defendant, ALLSTATE INSURANCE
COMPANY, to repair the motor vehicle owned by Plaintiff's
assignor, LUANNE DRESHER, was not sufficient to restore said
motor vehicle to its condition at the time of the loss and,
as such, Defendant, ALLSTATE INSURANCE COMPANY, was and is in
breach of the insurance policy issued to Plaintiff's
assignor, LUANNE DRESHER.
That the amount sought herein, falls within the limits of
liability described and enumerated in the policy.
Upon information and belief, Plaintiff, M.V.B. COLLISION
INC., has sustained damages in the amount of $3, 765.54,
representing the amount LUANNE DRESHER was caused to have due
and owing to Plaintiff, M.V.B. COLLISION INC., due to the
breach of contract by Defendant, ALLSTATE INSURANCE COMPANY,
plus costs, disbursements and interest.
By virtue of the breach Plaintiff, M.V.B. COLLISION INC., has
second cause of action seeks damages sustained by Joseph
Dargenio for breach of contract. It is alleged that Joseph
Dargenio owned a 2015 Nissan Rogue, which was insured by
Allstate. The said vehicle sustained property damage from an
accident that occurred on June 8, 2016.
result of said accident, Allstate had the Defendant, Norman
Wong, inspect the Nissan on or about June 16, 2016, who
estimated the damages at $9, 876.13. The Verified Complaint
states that supplemental estimates were written for the
Nissan by Allstate's adjuster, Defendant, John Pluchino,
on July 11, 2016 and August 3, 2016, in the sums of $534.28
and $601.41. The total amount of damage sustained by the
Nissan totaled $13, 531.75 which was fully repaired by
Plaintiff. Allstate offered only $11, 011.82 to Joseph
Dargenio and his assignor Plaintiff, leaving a balance owed
by Allstate to Plaintiff of $2, 519.93. Plaintiff alleges
that the foregoing actions of Allstate constitutes a breach
of contract. Punitive damages are also sought to be
third cause of action is based upon breach of contract
asserted against Allstate from an assignment by Charles
Cardile to Plaintiff. Charles Cardile owned a 2014 Mercedes
Benz CLS 550 which was insured by Allstate. The said vehicle
was involved in an accident on July 6, 2016, which caused
Allstate to have its representative Philip Podberesky write
two estimates of $9, 519.47 and $1, 062.79.
repaired the said Mercedes Benz for a cost of $16, 196.50.
Defendant refused to pay Plaintiff the $16, 196.50, but only
offered to pay $11, 651.35. The foregoing constitutes a
breach of contract by Allstate toward its insured Charles
Cardile of $4, 545.15.
stated herein, Charles Cardile assigned his cause of action
to Plaintiff. Plaintiff seeks the sum of $4, 545.15 plus
fourth cause of action is based upon the negligence of the
Defendant, Kaysha Cordero. Plaintiff claims that the
Defendant, Kaysha Cordero, inspected the 2016 Mercedes Benz
C300, owned by Luanne Dresher, for Allstate, and wrote an
estimate for $697.45. Plaintiff states Defendant, Kaysha
Cordero, was "negligent and/or reckless" in her
inspection and preparation of the repair estimate for the
also alleged that Defendant, Kaysha Cordero, violated New
York State Insurance Law and Regulation 64 § 216.7...
"in that she refused and/or failed to negotiate
Plaintiff's assignor in good faith, resulting in damages
to Plaintiff, M.V.B. Collision Inc."
states that Defendant, Kaysha Cordero, is liable because:
"That the Defendant, Kaysha Cordero, owed a duty of care
to Plaintiff's assignor to professionally and competently
inspect the subject vehicle in a non-negligent manner and to
write estimate(s) regarding the repair(s) to said vehicle in
a professional; competent; and, non-negligent manner,
pursuant to the requirements imposed by the State of New York
in issuing her an independent Adjuster's License and to
abide by all New York State laws, rules and regulations in
By virtue of this negligence, Plaintiff, M.V.B. COLLISION
INC., has been damaged in the amount of $10, 828.62."
fifth cause of action is based upon negligence of Defendant,
Philip Podberesky. It is alleged that Defendant inspected a
2014 Mercedes Benz CLS 550 owned by Charles Cardile on July
19, 2016, on behalf of Allstate, and wrote an estimate for
$9, 519.47. Defendant also wrote a supplemental estimate for
$1, 062.79. The Verified Complaint alleges that Philip
Podberesky was negligent and reckless in the inspection and
preparation of the repair estimate for the Mercedes Benz.
Defendant is alleged to have violated New York State
Insurance Law and Regulation 64 § 216.7 because he
refused, or failed, to negotiate Plaintiff's claim in
good faith. Defendant, Philip Podberesky, is liable because:
"Upon information and belief, Defendant, PHILIP
PODBERESKY, was negligent and/or reckless in his preparation
of a repair estimate ...