| Silvers v State of New York |
| 2009 NY Slip Op 09708 [68 AD3d 668] |
| December 29, 2009 |
| Appellate Division, First Department |
| Lon Silvers, as Administrator of the Estate of Ralph Silvers,Deceased, Appellant-Respondent, v State of New York et al.,Respondents-Appellants. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Michael S. Buskus of counsel), forrespondents-appellants.
Order of the Court of Claims of the State of New York (Thomas H. Scuccimarra, J.), enteredMay 2, 2007, which, in an action seeking recoupment of money paid to the client of an insurancebroker, denied the parties' respective motions for summary judgment, unanimously modified, onthe law, to grant defendants' motion for summary judgment dismissing the complaint, andotherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendantsdismissing the complaint.
Claimant insurance broker seeks recoupment of money from defendant State Insurance Fund(SIF) that he was compelled to pay one of his clients after it was determined that he hadnegligently failed to obtain workers' compensation insurance for that entity's out-of-stateemployees (see Electronic Servs. Intl. v Silvers, 284 AD2d 367 [2001], lvdismissed 97 NY2d 700 [2002], lv denied 99 NY2d 508 [2003]). Although SIF hasnever sold out-of-state coverage, claimant maintains that one of SIF's field representativesadvised him that the policy that he had acquired on behalf of his client would cover itsout-of-state employees, and the Court of Claims found the existence of triable issues of factprecluding summary judgment to either side. However, in the absence of any evidence that thisfield representative was authorized to speak for SIF with respect to coverage for out-of-stateemployees, any statement on his part is not an admission that can be received in evidence againstthe principal (see Loschiavo v Port Auth. of N.Y. & N. J., 58 NY2d 1040 [1983]; Aquino v Kuczinski, Vila & Assoc.,P.C., 39 AD3d 216, 221 [2007]).
Furthermore, even assuming that such field representative could bind SIF by his statementsto claimant, any reliance by claimant upon the representative's purported misrepresentations wasunreasonable as a matter of law. "A claim for negligent misrepresentation requires the [claimant]to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on thedefendant to impart correct information to the [claimant]; (2) that the information was incorrect;and (3) reasonable reliance on the information" (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148 [2007]).Here, apart from the fact that the arm's length business relationship, such as that betweenclaimant and the field representative, is not generally considered to be of the sort of aconfidential or fiduciary nature [*2]that would support a cause ofaction for negligent misrepresentation (see e.g. Dobroshi v Bank of Am., N.A., 65 AD3d 882, 884[2009]), claimant, as a sophisticated insurance broker, is unable to show any reasonable relianceupon the representative's alleged misrepresentations inasmuch as a broker is presumed to haveread, and have knowledge of, the insurance policy that is being procured on behalf of the insured(see Western Bldg. Restoration Co., Inc.v Lovell Safety Mgt. Co., LLC, 61 AD3d 1095, 1100 [2009]; Greater N.Y. Mut. Ins. Co. v White KnightRestoration, 7 AD3d 292 [2004]). Concur—Mazzarelli, J.P., Catterson,Moskowitz, Richter and Manzanet-Daniels, JJ.