Wehringer v. Standard Security Life Insurance

OPINION OF THE COURT Memorandum. On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), the order of the Appellate Division should be affirmed, with costs. The complaint alleges no relationship, contractual or otherwise, giving rise to a duty on the part of the defendant, breach of which could furnish a basis for tort liability [759] (see Albemarle Theatre v Bayberry Realty Corp., 27 AD2d 172, 176; cf. North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171, 179), nor does it allege that the insurance policy issued to plaintiff did not permit a premium increase for issuance of a separate policy to plaintiff’s ex-wife (cf. Sciasscia v Fredburn Constr. Corp., 248 App Div 608; Ippisch v Moricz-Smith, 1 Misc 2d 120, 124, revd on other grounds 1 AD2d 968). A threat to do what one has a legal right to do is not actionable (30 East End v World Steel Prods. Corp., 110 NYS2d 754). Moreover, absent a duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty (see Marvex Processing & Finishing Corp. v Allendale Mut. Ins. Co., 91 Misc 2d 683, affd 60 AD2d 800; Grimm v Bam, 22 Misc 2d 982; PJI 2:284). Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli taking no part. On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.