The motion that went nowhere

A no-fault complaint can adequately plead breach of contract while failing to support additional fraud or consequential-damages claims. Genovese v State Farm Mutual Automobile Insurance Co., 106 AD3d 866, 2013 NY Slip Op 03453, illustrates that distinction.

The case was decided May 15, 2013, by the Appellate Division, Second Department, not the Appellate Term as an earlier version of this page stated. This remains a historical pleading note, not a finding that the insurer ultimately owed the disputed benefits.

Legal Update (September 2026): CPLR 2106 was amended effective January 1, 2024 (L. 2023, ch. 559) to permit an affirmation under penalty of perjury by any person, wherever made — see Matter of Sweet v Fonvil, 2024 NY Slip Op 02654 — so the professional and ownership restrictions this note turns on no longer control. Current rule: CPLR 2106 after the 2024 amendment.

What survived the dismissal motion

The appellate court restored the breach-of-contract cause of action against State Farm. The allegations described an insurance agreement for no-fault benefits and a breach through denial of coverage for medical services. Surviving a motion addressed to the sufficiency of those allegations was not a final judgment on coverage or damages.

The court left dismissal of the other challenged causes of action in place. The fraud claim against State Farm repeated the contract allegations, while the fraud allegations against the other defendants were conclusory or insufficient. The claimed consequential damages lacked adequate factual allegations connecting the asserted pain and suffering to the insurer’s contractual breach.

The passage highlighted in the original note

The following historical excerpt retains the original selection. A transcription error in “stripped” has been corrected to match the opinion.

“The complaint alleged, among other things, that the plaintiff entered into an insurance contract for State Farm to provide the plaintiff with no-fault insurance benefits if he was involved in a car accident, and that State Farm breached the contract by denying coverage for medical services. Since the allegations in the complaint were sufficient to state a breach of contract cause of action, the Supreme Court should have denied that branch of State Farm’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action.

The Supreme Court properly granted that branch of State Farm’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, which sought consequential damages for breach of the no-fault insurance benefits policy. The plaintiff’s prolix allegations, when “[s]tripped of their verbiage” (United States Fid. & Guar. Co. v Pressler, 77 NY2d 921, 923), do not adequately plead facts that would support a finding that his damages for pain and suffering arose out of State Farm’s alleged breach of its obligations under its no-fault insurance contract with him (see id. at 923).”

Jason Tenenbaum’s original May 2013 observation

The commentary below is preserved as a dated observation, including the author’s then-current word-count search and reference to Data Tree. Those search counts have not been recomputed for 2026.

This was Mr. Zuppa’s case.  I omitted the fact that his fraud causes of action were booted.  I think the 3211(a)(7) portion and the fact that the court was unhappy with his prolix allegations was enough to post.  Admittedly, I had to google the word prolix – I never encountered it before in my 30+ years on this earth.  That word in the history of the published decisions in New York has been used 167 times.  Not a lot when you consider that our courts probably generate over 10,000 opinions a year.  Incidentally, the last time the Second Department used the prolix was in 2007 (Data Tree, LLC v. Romaine, 36 A.D.3d 804, 828 N.Y.S.2d 512, 2007 N.Y. Slip Op. 00526, N.Y.A.D. 2 Dept., January 23, 2007 (NO. 2005-06121, 19331/04).

Knowing the Plaintiff, the complaint read like a novel.

A later-history note on Data Tree

The linked 2007 Appellate Division Data Tree decision appears in the original commentary because of its wording, not as authority for no-fault coverage. Its later history nonetheless matters: the Court of Appeals reversed the order insofar as appealed from, 9 NY3d 454 (2007), and remitted the FOIL dispute for further proceedings.

That reversal concerned public-record access, privacy and electronic production. It is not a ruling on Genovese’s pleading claims. Nor should a reader use the earlier Data Tree decision as the last word on its FOIL dispute simply because it appears in a historical blog paragraph.

Pleading the claim is different from proving it

CPLR 3211(a)(7) addresses failure to state a cause of action. Genovese’s different outcomes for different claims show why each claim’s allegations need separate attention. CPLR 3016(b) also requires detail in pleading fraud; attaching that label to a contract dispute is not enough.

For practical file review, distinguish the insurance promise, the alleged breach, the claimed loss and the facts connecting the loss to that breach. Keep the policy, claim and denial chronology available to counsel. A dispute about the sufficiency of allegations is not the same as whether the evidence will support those allegations on summary judgment or at trial.

The historical pleading discussion addresses pleading choices. For the separate evidentiary stage, see the High Quality Medical summary-judgment note: the form and substance of the actual opposition also matter.

This page does not say that consequential damages are never available or that every insurance denial supports an independent fraud claim. Counsel must assess the pleaded facts, the requested relief and the governing authorities. For help reviewing a particular dispute, request a Free Case Review.

Connect to the Encyclopedia

• Topic hub: Affirmations & Affidavits (CPLR 2106)
• Proper pleading requirements in New York personal injury cases
• Understanding procedural delays and prejudice standards in no-fault litigation
• How declaratory actions can be properly stated in insurance disputes
• Combating litigation delay tactics in no-fault insurance cases
• New York No-Fault Insurance Law
• The fifth time 2106 was invoked
• Improper affirmation cost the plaintiff its case: Radiology Today (2012)

Last reviewed: September 2026. The court attribution, description, quoted-word transcription and Data Tree history have been corrected. Jason’s historical commentary remains distinct from the new explanation. This note is general information, not advice about a particular claim.