WEHRINGER v. STANDARD SEC. LIFE INS. CO. OF NEW YORK


57 N.Y.2d 757 (1982)

Cameron K. Wehringer, Appellant, v. Standard Security Life Insurance Company of New York, Respondent.

Court of Appeals of the State of New York.

Decided September 14, 1982.


Attorney(s) appearing for the Case

Cameron K. Wehringer, appellant pro se.

Seymour J. Ugelow for respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur; Judge GABRIELLI taking no part.


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 (see Albemarle Theatre v Bayberry Realty Corp., 27 A.D.2d 172, 176; cf. North Shore Bottling Co. v Schmidt & Sons, 22 N.Y.2d 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 A.D.2d 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 N.Y.S.2d 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 A.D.2d 800; Grimm v Bam, 22 Misc.2d 982; PJI 2:284).

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.


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