| Core-Mark Intl. v Swett & Crawford Inc. |
| 2010 NY Slip Op 02735 [71 AD3d 1072] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Core-Mark International, Appellant, v Swett & CrawfordInc. et al., Respondents. |
—[*1] Shearman & Sterling, LLP, New York, N.Y. (Henry Weisburg, Daniel M. Segal, and StevenF. Molo of counsel), for respondents.
In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiff appeals,as limited by its brief, from so much of an order of the Supreme Court, Westchester County(Rudolph, J.), entered January 29, 2009, as granted those branches of the defendants' motionwhich were pursuant to CPLR 3211 (a) (7) to dismiss the first and third causes of action of theamended complaint and, in effect, denied its cross application for leave to replead the first causeof action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action alleging, inter alia, that the defendants, acting as itsinsurance brokers, procured a "scheduled loss" property insurance policy from CommonwealthInsurance Company (hereinafter Commonwealth), rather than the specific insurance coverage itrequested, namely, a general limits blanket policy. As a result of the defendants' alleged mistake,the plaintiff was not fully reimbursed for certain property damage to one of its warehouses. Inthe amended complaint, the plaintiff asserted causes of action to recover damages for breach offiduciary duty and negligence, and for declaratory relief.
The defendants moved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the amendedcomplaint, and the Supreme Court granted that branch of the motion, but granted the plaintiffleave to replead the negligence cause of action.
An insurance broker has a common-law duty either to obtain the coverage that a customerspecifically requests within a reasonable period of time or to inform the customer of an inabilityto do so (see Verbert v Garcia, 63 AD3d 1149 [2009]; Loevner v Sullivan & StraussAgency, Inc., 35 AD3d 392, 393 [2006]). Although exceptional circumstances may arise inwhich insurance agents, through their conduct, may assume duties in addition to those fixed atcommon law (see Murphy v Kuhn, 90 NY2d 266, 272 [1997]), that was not the casehere. There was no allegation that the defendants received compensation for consultation apartfrom payment of the premiums, that the plaintiff relied on the expertise of the defendantsregarding a question of coverage, or that there was a course of [*2]dealing between the plaintiff and the defendants over an extendedperiod of time that would have put an objectively reasonable insurance broker on notice that itsadvice was being sought and specially relied upon (see Murphy v Kuhn, 90 NY2d 266,272). Thus, affording the amended complaint every favorable inference (see Leon vMartinez, 84 NY2d 83, 87-88 [1994]), it alleged only that the defendants failed to procurethe type of policy the plaintiff requested and failed to inform the plaintiff of an inability to do so.Accordingly, the Supreme Court correctly granted those branches of the defendants' motionwhich were pursuant to CPLR 3211 (a) (7) to dismiss the first cause of action asserting a breachof fiduciary duty and the third cause of action seeking a judgment declaring that the defendantsbreached their fiduciary duties to the plaintiff.
The plaintiff's remaining contentions either are without merit or need not be reached in lightof our determination. Fisher, J.P., Covello, Lott and Sgroi, JJ., concur.