| Jual Constr. Ltd. v A.C. Edwards, Inc. |
| 2010 NY Slip Op 05517 [74 AD3d 1150] |
| June 22, 2010 |
| Appellate Division, Second Department |
| Jual Construction Ltd., Respondent, v A.C. Edwards, Inc.,Appellant. |
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In an action to recover damages for negligence in the procurement of insurance coverage andbreach of contract, the defendant appeals, as limited by its brief, from so much of an order of theSupreme Court, Suffolk County (Costello, J.), dated September 25, 2009, as denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
An insurance agent or broker may be held liable under theories of breach of contract ornegligence for failing to procure insurance (see Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d792, 793 [2007]; Mickey'sRides-N-More, Inc. v Anthony Viscuso Brokerage, Inc., 17 AD3d 328, 329 [2005]; see also Katz v Tower Ins. Co. ofN.Y., 34 AD3d 432 [2006]). An insured must show that the agent or broker failed todischarge the duties imposed by the agreement to obtain insurance, either by proof that itbreached the agreement or because it failed to exercise due care in the transaction (seeBedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d at 793-794; Mickey'sRides-N-More, Inc. v Anthony Viscuso Brokerage, Inc., 17 AD3d at 329; Reilly vProgressive Ins. Co., 288 AD2d 365, 365-366 [2001]). Liability is "limited to that whichwould have been borne by the insurer had the policy been in force" (Structural Bldg. Prods.Corp. v Business Ins. Agency, 281 AD2d 617, 620 [2001], quoting American MotoristsIns. Co. v Salvatore, 102 AD2d 342, 346 [1984]).
Here, the defendant, A.C. Edwards, Inc., failed to meet its prima facie burden ofdemonstrating its entitlement to judgment as a matter of law. Accordingly, the Supreme Courtproperly denied the motion for summary judgment dismissing the complaint (see Alvarez vProspect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d557 [1980]). Mastro, J.P., Florio, Belen and Roman, JJ., concur.