Conclusory Claims Fall Short: Second Department Dismisses Fraud and GBL § 349 Claims Against Insurance Adjuster

By: Jeffrey M. Haber

In Wimbish v. Crema-Samalya, 2026 N.Y. Slip Op. 02691 (2d Dept. Apr. 29, 2026), the Appellate Division, Second Department, underscored the limits of fraud and consumer protection claims. Reversing a Kings County Supreme Court order, the Court granted dismissal of claims against an insurance adjuster accused of steering a property owner toward a restoration contractor whose work later proved deficient. As discussed below, the ruling serves as a reminder that conclusory allegations, even when bolstered by informal communications, such as text messages, will not substitute for well-pleaded facts showing materially misleading conduct or a specific misrepresentation.

Wimbish v. Crema-Samalya[1]

Plaintiff alleged that on or about December 29, 2017, a fire occurred on his property in Brooklyn, New York (the “Premises”). Several days later, Plaintiff spoke to defendant, Joan Crema-Samalya (“Crema-Samalya”), an adjuster employed by the insurance company, Mountain Valley Indemnity Company (“Mountain Valley”). Crema-Samalya allegedly recommended defendant Five Boro Fire Restoration, Inc.(“FBFR”) to Plaintiff.  Thereafter, plaintiff entered into a contractual agreement with FBFR to restore the Premises.

Mountain Valley made several payments to FBFR in order to complete the restoration at the Premises. Plaintiff alleged that “after inspecting the work performed by [FBFR] with a licensed contractor, it was determined that all the work was performed in an inferior manner with inferior material, requiring removal and replacement of all defects” and that “the work was not performed to New York City building Codes.”[2] Plaintiff maintained that “[b]ut for the inducement of the insurance adjuster Joan Crema-Samalya, [FBFR] would not have been retained by Plaintiff.” As a result, Plaintiff alleged he suffered damages exceeding $530,971.46 as a result of defendants’ acts. 

Plaintiff commenced the action against Crema-Samalya, among others, alleging causes of action against her to recover damages for violation of General Business Law § 349 and fraud. Prior to serving an answer, Crema-Samalya moved pursuant to CPLR 3211(a)(7) to dismiss the complaint as against her for failure to state a cause of action. In opposition, plaintiff submitted a sworn affirmation and text messages between himself and Crema-Samalya. By order dated April 11, 2024, the motion court denied the motion without explanation. Defendant appealed.

The Second Department reversed.

To state a claim under General Business Law (“GBL”) § 349, a plaintiff must establish that the defendant engaged in (1) consumer-oriented conduct; (2) that is misleading in a material way; and (3) the plaintiff suffered injury as a result of the allegedly deceptive act.[3]  For purposes of GBL § 349, “deceptive acts and practices, whether representations or omissions, [are] limited to those likely to mislead a reasonable consumer acting reasonably under the circumstances.”[4] “[T]he statute is limited in its application to those acts or practices which undermine a consumer’s ability to evaluate his or her market options and to make a free and intelligent choice.”[5]  

The Court held that “plaintiff failed to identify and allege any conduct by Crema-Samalya that was materially misleading.”[6] The Court explained that “plaintiff merely alleged in conclusory fashion that Crema-Samalya provided ‘misleading information’ so as to induce the plaintiff (and other insureds) to hire FBFR.”[7] The Court rejected plaintiff’s contention that a reasonable consumer acting reasonably under the circumstances would have interpreted Crema-Samalya’s text message regarding expenses to be submitted for payment by the insurance company as indicating that Crema-Samalya had verified that FBFR applied for and received the proper permits for the job or that she was acting as a manager of FBFR’s performance.[8]

Under New York law, to plead a cause of action for fraud, a plaintiff must allege that the defendant made a material misrepresentation of fact, knew it was false, intended to induce reliance, and that the plaintiff justifiably relied on it to their detriment.[9] Furthermore, CPLR 3016(b) imposes a heightened pleading standard, requiring that fraud claims be stated with particularity.[10] 

The Court held that Plaintiff failed to state a claim for fraud.[11] The Court explained that “the complaint [did] not provide any detail, but merely state[d] the elements of a cause of action sounding in fraud in conclusory fashion.”[12] The Court noted that the text messages in plaintiff’s affirmation, on which plaintiff relied, “[did] not identify any particular statement therein that would constitute a misrepresentation of fact.”[13]  

Takeaway

Wimbish reinforces the proposition that not every act gives rise to fraud or consumer‑protection liability. Where the defendant’s role is limited, such as making a referral or facilitating communications with another party, liability will not attach absent well‑pleaded facts showing materially misleading conduct or a specific misrepresentation of fact. Generalized assertions that a defendant “induced” another to hire a co-defendant, without identifying what was said, why it was misleading, and how a reasonable consumer would have been deceived, are insufficient to state a claim under GBL § 349.

Wimbish also highlights the importance of pleading fraud with particularity. Courts will not allow plaintiffs to rely on conclusory recitations of the elements of fraud or to transform informal communications, such as text messages addressing payment logistics, into actionable misrepresentations. CPLR 3016(b) requires particularity, and where a plaintiff cannot point to a concrete false statement or omission, dismissal is appropriate at the pleading stage.

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Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes only and is not intended to be, and should not be, taken as legal advice.

Unless otherwise stated, Freiberger Haber LLP’s articles are based on recently decided published opinions and not on matters handled by the firm.

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[1] The factual discussion is based on the decision of the Second Department and the briefing on appeal.

[2] The contract provided that “permits will be obtained, workmen’s compensation insurance maintained and any housing and all building violations will be dismissed.” FBFR also signed a Contractor’s Waiver of Lien, which provided “I am duly licensed under applicable laws and regulations” and “…will comply with applicable codes…” 

[3] City of New York v. Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 621 (2009); Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (2012); MVB Collision, Inc. v. Allstate Ins. Co., 129 A.D. 3d 1041, 1042 (2d Dept. 2015); Andre Strishak & Assoc. v. Hewlett Packard Co., 300 A.D.2d 608, 609 (2d Dept. 2002).

[4] Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 26 (1995).

[5] North State Autobahn, Inc. v. Progressive Ins. Group Co., 102 A.D.3d 5, 13 (2d Dept. 2012).

[6] Slip Op. at *1.

[7] Id., citing Keshin v. Montauk Homes, LLC, 162 A.D.3d 758, 760 (2d Dept. 2018).

[8] Id.

[9] See, e.g., Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 558 (2009).

[10] Atlasman v. Korol, 238 A.D.3d 826, 829 (2d Dept. May 14, 2025).

[11] Slip Op. at *1.

[12] Id., citing Pare v. Aalbue, 222 A.D.3d 769, 775 (2d Dept. 2023).

[13] Id., citing K. M. v. Ursuline Sch. of New Rochelle, 241 A.D.3d 673, 676 (2d Dept. 2023); Ikezi v. 82nd St. Acads., 221 A.D.3d 986, 988 (2d Dept. 2023).