Cetrulo LLP’s New York appellate team led by Kevin McCaffrey recently prevailed before the Appellate Division, Fourth Department, which upheld dismissal of claims against an insurer sounding in breach of contract, discrimination, and tortious interference.
Cetrulo’s client, a major insurance company, was sued by a former agent whose relationship with the insurer had been terminated. After completion of discovery and an evidentiary hearing before Supreme Court, Erie County, Cetrulo’s team interposed a motion for summary judgment which was granted in full after oral argument. As the Court noted, Plaintiff’s claims that she did not understand the agency agreement, or that terms of the agreement were concealed, were plainly without merit. The Court also denied Plaintiff’s request to amend the complaint to add discrimination and tortious interference claims, finding those allegations meritless and unsupported. While Plaintiff appealed this dismissal, she failed to timely perfect, and her case was dismissed pursuant to 22 NYCRR §1250.10.
Plaintiff thereafter sought to vacate dismissal, claiming she and/or her counsel were somehow confused by vague “advice and instructions” supposedly offered by unnamed judges. Cetrulo’s team opposed this relief, and Plaintiff’s motion was denied.
Undaunted, Plaintiff proceeded to file yet another lawsuit against the insurer, alleging the same facts but pleading new causes of action. Plaintiff also maintained that res judicata did not apply to causes of action which were disallowed when Supreme Court denied her motion to amend in the first action. Notwithstanding these arguments, Cetrulo’s team ultimately prevailed in this second action as well, via motion to dismiss based on res judicata.
Plaintiff appealed dismissal of this second action, and Cetrulo’s appellate team handled briefing and oral argument in early 2026. By way of decision dated April 24, 2026, the Appellate Division, Fourth Department, agreed with all aspects of Cetrulo’s arguments, and upheld dismissal in full. As the Court observed, Plaintiff’s latest breach of contract claims should have been raised in the first action, and, in any event, the underlying issues were the same as those in the first action. The Court also agreed that dismissal of the first action (including denial of leave to amend) was on the merits, and thus res judicata applied to bar any subsequent claims.