| Stilianudakis v Tower Ins. Co. of N.Y. |
| 2009 NY Slip Op 09456 [68 AD3d 973] |
| December 15, 2009 |
| Appellate Division, Second Department |
| George Stilianudakis, Respondent, v Tower InsuranceCompany of New York, Defendant, and Avenia Ins. Agency, Inc.,Appellant. |
—[*1] Sacco & Fillas, LLP, Whitestone, N.Y. (Luigi Brandimarte of counsel), forrespondent.
In an action, inter alia, to recover damages for negligent misrepresentation, the defendantAvenia Ins. Agency, Inc., appeals, as limited by its brief, from so much of an order of theSupreme Court, Queens County (Weiss, J.), entered July 31, 2008, as denied that branch of itsmotion which was to dismiss the third cause of action to recover damages for negligentmisrepresentation pursuant to CPLR 3211 (a) (7).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Avenia Ins. Agency, Inc., which was to dismiss the thirdcause of action to recover damages for negligent misrepresentation pursuant to CPLR 3211 (a)(7) is granted.
"A claim for negligent misrepresentation requires the plaintiff to demonstrate (1) theexistence of a special or privity-like relationship imposing a duty on the defendant to impartcorrect information to the plaintiff; (2) that the information was incorrect; and (3) reasonablereliance on the information" (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148[2007]). Here, the plaintiff failed to allege any misrepresentation on the part of the defendantAvenia Ins. Agency, Inc. (hereinafter the appellant), which procured an insurance policy on hisbehalf to cover his building (see Wong v Gottbetter, 18 AD3d 541 [2005]; cf.Ambrosino v Exchange Ins. Co., 265 AD2d 627 [1999]), or the existence of a specialrelationship with the appellant upon which a cause of action alleging negligent misrepresentationcould be predicated (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152[2006]; Murphy v Kuhn, 90 NY2d 266 [1997]; Kay Bee Bldrs., Inc. v Merchant'sMut. Ins. Co., 61 AD3d 720, 722 [2009]; Curiel v State Farm Fire & Cas. Co., 35AD3d 343 [2006]; Duratech Indus., Inc. v Continental Ins. Co., 21 AD3d 342, 345[2005]).
Moreover, to the extent that the third cause of action asserted against the appellant can beconstrued as one alleging negligent procurement of a policy, it must nevertheless fail because,having received the policy more than two years prior to the fire, the plaintiff is conclusivelypresumed to have read and assented to its terms (see Loevner v Sullivan & Strauss Agency,Inc., 35 AD3d 392, 395 [2006]; Busker on Roof Ltd. Partnership Co. v Warrington,283 AD2d 376, 377 [2001]; Rotanelli v Madden, 172 AD2d [*2]815 [1991]).
The appellant's remaining contention is not properly before this Court. Fisher, J.P.,Angiolillo, Lott and Sgroi, JJ., concur.