UN ITED STATES COURT OF APPEALS FO R TH E SECO N D CIRCU IT SUMMARY ORD ER TH IS SUMMARY ORDER WILL N OT BE PUBLISH ED IN TH E FED ERAL REPO RTER AN D MAY N OT BE CITED AS PRECED ENTIAL AUTH ORITY TO TH IS OR AN Y OTHER COURT, BU T MAY BE CALLED TO THE ATTENTION OF TH IS OR AN Y O TH ER COURT IN A SUBSEQ UEN T STAGE OF TH IS CASE, IN A RELATED CASE, OR IN AN Y CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUD ICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the U nited States Courthouse, Foley Square, in the City of N ew York, on the 30th day of August, two thousand and four.

PRESEN T:

JO SÉ A. CABRAN ES CH ESTER J. ST RA UB RICHARD C. WESLEY, Circuit Judges.

JO AN N E AQ U ILIN O , Plaintiff-Appellant, -v.- N o. 04-0068

CO MM ERC IAL UN IO N MIDWEST IN SU R A N C E CO MPAN Y, Defendant-Appellee.

JOSHUA L. MALLIN , Weg & Myers, P.C ., N ew APPEARIN G FOR APPELLAN T:

York, N Y.

BRIAN R. RUDY, Feldman, Rudy, Kirby &

APPEARIN G FOR APPELLEE:

Farquharson, P.C., Westbury, N Y.

Appeal from an order by the United States District Court for the Southern District of N ew York (Alvin K. H ellerstein, Judge).

UPON D UE CON SID ERATION , IT IS H EREBY O RD ERED , AD JUD GED , AN D D ECREED that the judgment of the District Court is hereby AFFIRMED .

Joanne Aquilino appeals from the judgment of the District Court dismissing her claims against Commercial Union Midwest Insurance Company.

O n July 31, 2001, plaintiff filed suit, based on diversity of citizenship, in the District Court, alleging that defendant breached its insurance contract. Plaintiff sought, inter alia, consequential damages, damages for emotional distress, mental anguish, attorneys' fees, and damages under § 349 of the General Business Law of N ew York. Defendant moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to have the aforementioned portions of the complaint dismissed. The motion was submitted and argued before Judge H ellerstein, and was granted in its entirety.

For substantially the same reasons stated by Judge H ellerstein, see Summary O rder dated N ovember 30, 2001 (incorporating his oral explanation of his ruling, see Transcript of H earing on N ovember 28, 2001, at 20-24); see also O rder dated N ovember 18, 2003

(converting the November 30, 2001 Summary O rder into a final order), we affirm.

We have considered all of plaintiff's claims on appeal, and we find them to be without merit. Accordingly, we hereby AFFIRM the judgment of the District Court.

FOR TH E CO URT, Roseann B. MacKechnie, Clerk of Court By