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 

-----------------------------------------------------------------------------------X 

PROSIGHT SPECIAL TY 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+ ORDER ON 

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 of the implied covenant of good faith and fair dealing and the 

declaratory judgment counterclaims are dismissed. 

Much of what is at issue in this motion was addressed by 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 SPECIAL TY MANAGEMENT COMPANY, INC. ET AL vs. AL TRUIS 

GROUP, LLC 

Motion No. 001 

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Page 1 of4 

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NYSCEF DOC. NO. 26 

INDEX NO. 653775/2023 

RECEIVED NYSCEF: 01/26/2024 

Reference is made to a certain Niche Management Agreement (the Original Agreement; 

NYSCEF Doc. No. 9), dated February 4, 2020, as amended by a certain Amendment to Niche 

Management Agreement (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 Specialty Management Company, Inc., and New 

York Marine and General Insurance Company, pursuant to 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 of which amount 

to claiming that in fact it was the Plaintiffs who breached by improperly terminating the 

Agreement. Separately, in the United States District Court for the Southern District of New 

York, the Defendant in this case brought suit - the SDNY Action. That case is now dismissed for 

lack of subject matter jurisdiction. 

The Defendant's counterclaim (the Counterclaim; NYSCEF Doc. No. 4) for breach of the 

covenant of good faith and fair dealing is dismissed. It is entirely duplicative of the breach of 

contract counterclaim (Amcan Holdings, Inc. v Can. Imperial Bank of Commerce, 70 AD3d 423, 

426 [1st Dept 2010]). For example, (i) Counterclaim paragraphs 68 & 77 allege improper 

termination and improper invocation of Agreement Section 21(B)(3), (ii) paragraph 78 alleges 

failure to pay commissions due under the Agreement, (iii) paragraph 80 alleges improper early 

termination of the Agreement, (iv) paragraphs 81-82 allege refusal to pay monies due under the 

Agreement, and (v) paragraph 87 alleges deprivation of benefits the Defendant is "entitled to 

under the Agreement." Thus, it is dismissed. The additional allegation before this Court that 

653775/2023 PROSIGHT SPECIAL TY MANAGEMENT COMPANY, INC. ET AL vs. AL TRUIS 

GROUP, LLC 

Motion No. 001 

2 of 4 

Page 2 of 4 

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NYSCEF DOC. NO. 26 

INDEX NO. 653775/2023 

RECEIVED NYSCEF: 01/26/2024 

one of the Plaintiffs' representatives admitted in his deposition that the Defendant may be 

entitled to some money for services rendered amounts to nothing more than a potential admission 

that Plaintiffs breached the Agreement, not a separate cause of action. As discussed (1.26.24), 

this is manifestly different than allegations of a course of dealings involving inconsistent 

communications as to the basis for certain denials (cf Truetox Laboratories, LLC v. Healthjirst 

PHSP, Inc., 68 Misc 3d 1209(A) [Sup Ct 2020]). As such, and as the SDNY court held (see 

NYSCEF Doc. No. 14 at 3-4), the breach of the covenant of good faith and fair dealing 

counterclaim is dismissed as duplicative. 

The Defendant's counterclaim for a declaratory judgment is also dismissed. In case of an 

improper termination ( one that does not fall under any of the specific categories enumerated in 

Section 22[A]-[D]), the Agreement provides that the non-terminating party retains all rights in 

the relevant intellectual property: 

In the event of any other termination by either party, such termination shall be deemed an 

abandonment by the terminating party and transfer to the non-terminating party of the 

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 Defendant has an adequate, alternative remedy 

if it proves its breach of contract counterclaim (Ithilien Realty Corp. v 180 Ludlow Dev. LLC, 

140 AD3d 621, 622 [1st Dept 2016]). 

The Court has considered the Defendant's other argument and finds them unavailing. 

653775/2023 PROSIGHT SPECIAL TY MANAGEMENT COMPANY, INC. ET AL vs. AL TRUIS 

GROUP, LLC 

Motion No. 001 

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Page 3 of 4 

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NYSCEF DOC. NO. 26 

Accordingly, it is hereby 

INDEX NO. 653775/2023 

RECEIVED NYSCEF: 01/26/2024 

ORDERED that the counterclaims for breach of the covenant of good faith and fair dealing and 

for declaratory judgment are dismissed; and it is further 

ORDERED that the parties are directed to meet and confer as to what remains to be done in the 

way of discovery and to provide a proposed schedule no later than 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 

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□ OTHER 

□ REFERENCE 

Page4 of 4 

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