### Prosight Specialty Mgt. Co., Inc. v Altruis Group, LLC 2024 NY Slip Op 30329(U) January 26, 2024 Supreme Court, New York County Docket Number: Index No. 653775/2023 Judge: Andrew Borrok Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 26 

### SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 53

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PROSIGHT SPECIALTY MANAGEMENT COMPANY, INC.,NEW YORK MARINE AND GENERAL INSURANCE COMPANY,GOTHAMINSURANCECOMPANY Plaintiff, INDEX NO. MOTION DATE INDEX NO. 653775/2023 RECEIVED NYSCEF: 01/26/2024

653775/2023

09/27/2023 MOTION SEQ. NO. 001

- V - ALTRUIS GROUP, LLC, Defendant.

-----------------------------------------------------------------------------------X HON. ANDREW BORROK: 

### DECISION+ ORDERON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24 were read on this motion to/for DISMISS 

### Upon the foregoing documents, Prosight Specialty Management Company, Inc., New York Marine and General Insurance Company, and Gotham Insurance Company (collectively, the Plaintiffs)'s motion (Mtn. Seq. No. 001) is granted and Altruis Group, LLC (the Defendant)'s counterclaims for breach ofthe implied covenant ofgood faith and fair dealing and the declaratoryjudgment counterclaims are dismissed. Much ofwhat is at issue in this motion was addressedby the court (Vyskocil, J.) in a prior decision (the SDNY Decision; NYSCEF Doc. No. 14) issued in a related action (the SDNY Action) 

### captionedAltruis Grp. v. Prosight Specialty Mgmt. Co., 1:21-cv-10757 (SD NY Feb. 27, 2023).

653775/2023 PROSIGHT SPECIALTY MANAGEMENT COMPANY, INC. ET AL vs. ALTRUIS GROUP, LLC Motion No. 001 1 of 4 Page 1 of4 

### [* 1]NYSCEF DOC. NO. 26 INDEX NO. 653775/2023 RECEIVED NYSCEF: 01/26/2024 Reference is made to a certain Niche ManagementAgreement (the 

### OriginalAgreement; NYSCEF Doc. No. 9), dated February4, 2020, as amendedby a certain Amendmentto Niche ManagementAgreement (the 

### Amendment; the Original Agreement together with the Amendment, hereinafter, collectively, the 

### Agreement; NYSCEF Doc. No. 10), dated May 4, 2020, by and among the Defendant, ProSight SpecialtyManagement Company, Inc., and New York Marine and General Insurance Company, pursuantto which the Defendant agreed to provide certain insurance-related services to the Plaintiffs. When the Defendant allegedly failed to provide the agreed upon services, the Plaintiffs terminated the Agreement and sued in this court. In response in this action, the Defendant asserts three counterclaims - all ofwhich amount to claiming that in fact itwas the Plaintiffs who breachedbyimproperly terminating the Agreement. Separately, in the United States District Court for the Southern District ofNew York, the Defendantin this case brought suit - the SDNYAction. That case is now dismissed for lack ofsubject matterjurisdiction. The Defendant's counterclaim (the 

### Counterclaim; NYSCEF Doc. No. 4) for breach ofthe covenant ofgood faith and fair dealing is dismissed. It is entirely duplicative ofthe breach of contract counterclaim 

### (Amcan Holdings, Inc. v Can. ImperialBankof Commerce, 70 AD3d 423, 426 [1st Dept 2010]). For example, (i) Counterclaimparagraphs 68 & 77 allege improper termination and improper invocation ofAgreement Section 21(B)(3), (ii) paragraph 78 alleges failure to pay commissions due under the Agreement, (iii) paragraph 80 alleges improper early termination ofthe Agreement, (iv) paragraphs 81-82 allege refusal to paymonies due under the Agreement, and (v) paragraph 87 alleges deprivation ofbenefits the Defendantis "entitled to under the Agreement." Thus, it is dismissed. The additional allegation before this Court that

653775/2023 PROSIGHT SPECIALTY MANAGEMENT COMPANY, INC. ET AL vs. ALTRUIS GROUP, LLC Motion No. 001 2 of 4 Page 2 of4 

### [* 2]NYSCEF DOC. NO. 26 INDEX NO. 653775/2023 RECEIVED NYSCEF: 01/26/2024



### one ofthe Plaintiffs' representatives admitted in his deposition that the Defendant maybe entitled to some money for services rendered amounts to nothing more than a potential admission that Plaintiffs breached the Agreement, not a separate cause ofaction. As discussed (1.26.24), this is manifestly different than allegations ofa course ofdealings involving inconsistent communications as to the basis for certain denials 

### (cf Truetox Laboratories, LLCv. Healthjirst PHSP, Inc., 68 Misc 3d 1209(A) [Sup Ct 2020]). As such, and as the SDNY courtheld 

### (see NYSCEF Doc. No. 14 at 3-4), the breach ofthe covenant ofgood faith and fair dealing counterclaim is dismissed as duplicative. The Defendant's counterclaim for a declaratoryjudgmentis also dismissed. In case ofan improper termination (one that does not fall under any ofthe specific categories enumerated in Section 22[A]-[D]), the Agreementprovides that the non-terminating partyretains all rights in the relevant intellectual property: In the event ofany other termination by eitherparty, such termination shall be deemed an abandonment bythe terminating party and transfer to the non-terminating party ofthe terminating party's rights, title to and interest in the Captive Capabilities Niche Intellectual Property and the non-terminating party shall retain the sole undivided interest in the Captive Capabilities Niche Intellectual Property. (NYSCEF Doc. No. 9 § 22[E].) Thus, as the SDNY court held (NYSCEF Doc. No. 14 at 6-7), this claim too is dismissed as duplicative and the Defendanthas an adequate, alternative remedy ifitproves its breach ofcontract counterclaim 

### (Ithilien Realty Corp. v 180LudlowDev. LLC, 140 AD3d 621, 622 [1st Dept 2016]). The Court has considered the Defendant's other argument and finds them unavailing.

653775/2023 PROSIGHT SPECIALTY MANAGEMENT COMPANY, INC. ET AL vs. ALTRUIS GROUP, LLC Motion No. 001 3 of 4 Page 3 of4 

### [* 3]NYSCEF DOC. NO. 26


### Accordingly, itis hereby INDEX NO. 653775/2023 RECEIVED NYSCEF: 01/26/2024



### ORDERED thatthe counterclaims for breach ofthe covenant ofgood faith and fair dealing and for declaratoryjudgment are dismissed; andit is further ORDERED thatthe parties are directed to meet and confer as to whatremains to be done inthe way ofdiscovery andto provide a proposed schedule no laterthan February 19, 2024. SC: February 19, 2024@ 11:30 am
1/26/2024

DATE ANDREW BORROK, J.S.C. CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED

### □ DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

653775/2023 PROSIGHT SPECIAL TY MANAGEMENT COMPANY, INC. ET AL vs. AL TRUIS GROUP, LLC Motion No. 001 4 of 4

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