Key Takeaway
Landmark bad faith insurance case Perlbinder v Vigilant allows punitive damages for breach of implied covenant, potentially reshaping NY insurance law.
This article is part of our ongoing bad faith coverage, with 16 published articles analyzing bad faith issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Perlbinder v Vigilant Ins. Co., 2021 NY Slip Op 00439 (2d Dept. 2021)
I think this is perhaps the most consequential bad faith 349 case I have seen in years. It won’t move the needle on Assigned first party NF cases, but can cause heartache to carriers in wage loss first-party cases. I would venture a guess that this is the precursor of a bad faith statute that will eventually be enacted sometime in the next 0-3 years.
(1) “We agree with the Supreme Court’s determination to deny that branch of the defendants’ cross motion which was pursuant to CPLR 3211 (a) to dismiss the cause of action alleging violation of General Business Law § 349. Contrary to the defendants’ contention, the plaintiff sufficiently alleged deceptive conduct on their part that was “consumer-oriented,” that is, conduct that might “potentially affect similarly situated consumers” (Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25, 27 ; [_see Brown v Government Empls. Ins. htm), 1088-1089 ; [_Wilner v Allstate Ins.
htm), 164-165 ; _Acquista v New York Life Ins. _, 285 AD2d 73, 82 ; [_cf. Tiffany Tower Condominium, LLC v Insurance Co. htm), 863 ; _Genesco Entertainment, a Div. , Inc.
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(2) “We agree with the Supreme Court’s determination to deny that branch of the defendants’ cross motion which was pursuant to CPLR 3211 (a) to dismiss the plaintiff’s demand for punitive damages. P. v Public Serv. Mut. Ins. htm) ). _, 93 NY2d 282, 291 ; [_Ural v Encompass Ins. Co. htm), 565 ; _Wilner v Allstate Ins. _, 71 AD3d at 167). P. v Public Serv. Mut. Ins. _, 144 AD3d at 667-668) and based on the defendants’ alleged violation of General Business Law § 349 (_see Ural v Encompass Ins. Co.
_, 97 AD3d at 565; _Wilner v Allstate Ins.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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