| People v Wells Fargo Ins. Servs., Inc. |
| 2009 NY Slip Op 03596 [62 AD3d 404] |
| May 5, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, by Andrew M. Cuomo,Attorney General of the State of New York, Appellant, v Wells Fargo InsuranceServices, Inc., et al., Respondents. |
—[*1] Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C. (Richard Brusca of counsel),for respondents.
Appeal from order, Supreme Court, New York County (Bernard J. Fried, J.), entered January15, 2008, which, inter alia, granted defendants' motion to dismiss plaintiffs' causes of action forbreach of fiduciary duty and fraud under Executive Law § 63 (12), deemed to be an appealfrom judgment, same court and Justice, entered March 17, 2008 (CPLR 5501 [c]), dismissing,inter alia, the causes of action, and so considered, said judgment unanimously affirmed, withoutcosts.
The complaint failed to state a cause of action for breach of fiduciary duty and we declineplaintiff's request that we not follow our decision in People v Liberty Mut. Ins. Co. (52 AD3d 378 [2008]), where weheld, among other things, that an insurance broker may not be liable to its client for breach offiduciary duty absent a special relationship, which does not exist here (id. at 380; seealso Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d 392, 393 [2006], lvdenied 8 NY3d 808 [2007]). Nor has plaintiff pleaded a cause of action for breach offiduciary duty based merely on the existence of contingent commissions (see Hersch v DeWitt Stern Group,Inc., 43 AD3d 644, 645 [2007]).
The motion court also appropriately determined that the complaint failed to state a cause ofaction for fraud under Executive Law § 63 (12) with sufficient particularity (see e.g.People v Katz, 84 AD2d 381, 384-385 [1982]). The complaint fails to allege wrongdoingwithin the meaning of the statute as contingent commissions are not illegal in this state anddisclosure of the commissions was not required as of the time of the conduct alleged in thecomplaint (see [*2]People v Liberty Mut. Ins. Co., 52AD3d at 379; Hersch, 43 AD3d at 645). We need not determine whether disclosure isrequired as a result of a circular letter issued by the Department of Insurance in 2008.Concur—Gonzalez, P.J., Buckley, Catterson, McGuire and Renwick, JJ. [See 18Misc 3d 1117(A), 2008 NY Slip Op 50114(U).]