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SUPERIOR OFFICERS COUNCIL HEALTH & WELFARE FUND v. EMPIRE HEALTHCHOICE ASSUR., INC.

No. 244 SSM 40.

17 N.Y.3d 930 (2011)

935 N.Y.S.2d 574

2011 NY Slip Op 8449

SUPERIOR OFFICERS COUNCIL HEALTH & WELFARE FUND et al., Appellants, v. EMPIRE HEALTHCHOICE ASSURANCE, INC., Doing Business as EMPIRE BLUECROSS BLUESHIELD, Respondent.

Court of Appeals of New York.

Decided November 21, 2011.

Attorney(s) appearing for the Case

Mirkin & Gordon, P.C., Great Neck ( Joel Spivak , Donna M. Cliff and Stephen F. Gordon of counsel), for appellants.

Gibson, Dunn & Crutcher LLP, New York City ( Randy M. Mastro and Jonathan D. Fortney of counsel), for respondent.

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

The Appellate Division properly construed the plain language of the agreement and determined that plaintiffs' failure to adopt a drug formulary bars them from sharing in certain rebates that defendant received from prescription drug manufacturers. Additionally, plaintiffs fail to state a cause of action for breach of fiduciary duty separate and apart...

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