| Griffin v DaVinci Dev., LLC |
| 2007 NY Slip Op 08187 [44 AD3d 1001] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Brian Griffin, Plaintiff, v DaVinci Development, LLC, etal., Defendants and Third-Party Plaintiffs-Appellants, et al., Third-Party Defendant. RMSInsurance Brokerage, LLC et al., Third-PartyDefendants-Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Maureen E. O'Connor ofcounsel), for third-party defendant-respondent RMS Insurance Brokerage, LLC. Wilson, Elser, Moskowitz, Edleman & Dicker, LLP, White Plains, N.Y. (Nancy Quinn Kobaof counsel), for third-party defendant-respondent R & W Brokerage, Inc.
In an action to recover damages for personal injuries, the defendants third-party plaintiffsDaVinci Development, LLC, and Artie Cipoletti appeal from so much of an amended order ofthe Supreme Court, Suffolk County (Jones, J.), dated September 27, 2006, as granted the motionof the third-party defendant RMS Insurance Brokerage, LLC, to dismiss the third-party complaintinsofar as asserted against it and granted the separate cross motions of third-party defendantsRMS Insurance Brokerage, LLC, and R & W Brokerage, Inc., to sever the third-party action.
Ordered that the amended order is affirmed, with one bill of costs.
The defendant third-party plaintiff DaVinci Development, LLC (hereinafter DaVinci),contracted with the third-party defendant Action Siding, Inc. (hereinafter Action), to performwork [*2]on its premises. The contract required that Actionprocure liability insurance to protect DaVinci. Action then contracted with the third-partydefendant RMS Insurance Brokerage, LLC (hereinafter RMS), to procure the necessaryinsurance. RMS provided DaVinci with a series of certificates of liability insurance indicatingthat the coverage had been obtained. On or about May 7, 2004, the plaintiff was injured onDaVinci's premises while working for Action. The plaintiff commenced this action againstDaVinci, among others. DaVinci then learned that it was without any insurance coverage for theaccident and commenced a third-party action against Action, RMS, and R & W Brokerage, Inc.(hereinafter R & W), its own insurance broker, for contribution and indemnification. RMSmoved pursuant to CPLR 3211 (a) (7) to dismiss the third-party complaint insofar as assertedagainst it. RMS and R & W then cross-moved to sever the third-party action from the underlyingLabor Law action. The Supreme Court granted the motion and the cross motion. We affirm.
Accepting as true the facts alleged in support of the causes of action asserted in thethird-party complaint against RMS, and according the third-party plaintiff the benefit of everyfavorable inference, the causes of action asserted against RMS in the third-party complaint werenot sufficiently pleaded (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). DaVinci,which was not in privity of contract with RMS (see American Ref-Fuel Co. of Hempstead vResource Recycling, 248 AD2d 420 [1998]), failed to set forth sufficient allegations thatthere was "fraud, collusion, or other special circumstances" that would have enabled it to recoverfor its "pecuniary loss" (Binyan Shel Chessed, Inc. v Goldberger Ins. Brokerage, Inc., 18AD3d 590, 592 [2005]; cf. Benjamin Shapiro Realty Co. v Kemper Natl. Ins. Cos., 303AD2d 245 [2003]; Metral v Horn, 213 AD2d 524, 526 [1995]). Moreover, it failed to setforth sufficient allegations that it was an intended third-party beneficiary of the contract betweenAction and RMS (see Superior Ice Rink, Inc. v Nescon Contr. Corp., 40 AD3d 963, 965[2007]).
It was a provident exercise of the Supreme Court's discretion to grant the separate crossmotions to sever the third-party action (see Golfo v Loevner, 7 AD3d 568 [2004]).Schmidt, J.P., Goldstein, Skelos and Fisher, JJ., concur.