| McColgan v Brewer |
| 2010 NY Slip Op 06128 [75 AD3d 876] |
| July 15, 2010 |
| Appellate Division, Third Department |
| John McColgan, Appellant, v Donald Brewer et al., Defendants.(Action No. 1.) John McColgan, Appellant, v Rothe Engineering & Construction,Defendant, and Chicago Title Insurance Company, Respondent. (Action No.2.) |
—[*1] Jacobitz & Gubits, L.L.P., Walden (David Gandin of counsel), for respondent.
Stein, J. Appeal from an order of the Supreme Court (Zwack, J.), entered August 20, 2009 inUlster County, which, among other things, partially denied plaintiff's motion for leave to servean amended consolidated complaint.
Plaintiff owns a 10-acre parcel of land in the Town of Rosendale, Ulster County, to whichaccess from Route 32 depends upon a right-of-way over adjoining properties. Prior to [*2]purchasing the land, plaintiff obtained a professional survey and thesurveyor represented that title to the property included a right-of-way to allow access to theparcel from Route 32. Plaintiff then purchased a title insurance policy from defendant ChicagoTitle Insurance Agency through its agent, Abbacy Abstract Company, to insure, among otherthings, against loss or damage sustained or incurred by a lack of access to and from the property.While in the process of developing the property, plaintiff allegedly learned that a right-of-waydid not, in fact, exist. He thereafter filed a claim under the title insurance policy, which wasrejected by Chicago Title.
Plaintiff commenced legal actions against various defendants, including an action againstChicago Title for breach of contract. Plaintiff subsequently moved to consolidate the actions andfor permission to serve an amended consolidated complaint that included, among others, a newcause of action for negligence against Chicago Title and Abbacy Abstract. As relevant to thisappeal, Supreme Court denied plaintiff's request for leave to amend the complaint insofar as itincluded a negligence cause of action against Chicago Title. Plaintiff now appeals and we affirm.
The obligation of an insurer with respect to a title insurance policy is defined by the terms ofthe policy itself (see Aubuchon Realty Co. v Fidelity Natl. Tit. Ins. Co. of N.Y., 295AD2d 725, 727 [2002]; Brucha Mtge. Bankers Corp. v Nations Tit. Ins. of N.Y., 275AD2d 337, 338 [2000]; Corvetti v Fidelity Natl. Tit. Ins. Co. of N.Y., 258 AD2d 32, 34[1999], lv denied 94 NY2d 753 [1999]) and is, thus, " 'limited to the loss in value of thetitle as a result of title defects against which the policy insures' " (Aubuchon Realty Co. vFidelity Natl. Tit. Ins. Co. of N.Y., 295 AD2d at 727, quoting Citibank v Chicago Tit.Ins. Co., 214 AD2d 212, 221 [1995], lv dismissed 87 NY2d 896 [1995]).Furthermore, in the absence of evidence demonstrating a special relationship, such as "reli[ance]on [the] expertise of the agent regarding a raised question of coverage, or . . . anextended course of dealing sufficient to put objectively reasonable agents on notice that theiradvice [is] being specially relied upon" (Curanovic v New York Cent. Mut. Fire Ins. Co.,307 AD2d 435, 438 [2003]; see Murphy v Kuhn, 90 NY2d 266, 272 [1997]), anindependent duty will not arise and an insurance agent will not be liable for anything more thanobtaining the requested coverage (see Murphy v Kuhn, 90 NY2d at 270; Curanovic vNew York Cent. Mut. Fire Ins. Co., 307 AD2d at 438; Catalanotto v Commercial Mut.Ins. Co., 285 AD2d 788, 790 [2001], lv denied 97 NY2d 604 [2001]).
Here, plaintiff's negligence cause of action is premised on oral representations allegedlymade by Chicago Title's agent, confirming the existence of the right-of-way after the titleinsurance policy was issued, as a result of which plaintiff suffered economic loss. Plaintiffcontends that such representations were made in order to prevent him from submitting a claimpursuant to the title insurance policy, and that a special duty to plaintiff was created separate andapart from the contractual obligations included in the policy.
Our review of the record reveals that, in support of his motion to amend the complaint toinclude a claim for negligence against Chicago Title, plaintiff provided nothing more than theconclusory allegations contained within the pleadings. Specifically, plaintiff alleged that, afterthe policy had been issued and while he was in the process of moving forward with developmentfor his new business venture—of which all parties were purportedly aware—herelied on Abbacy Abstract's misrepresentation regarding the existence of the right-of-way inresponse to an inquiry made by plaintiff's attorney on his behalf. Such allegations, without more,failed to demonstrate how his relationship with Abbacy Abstract evolved in such a manner as togive rise to a special legal duty or that Chicago Title assumed any additional duties beyond thoseset forth in the policy [*3]and, therefore, were insufficient tosupport his proposed amendment to the complaint to include a cause of action for negligenceagainst Chicago Title (see generallyD'Orazio v Mainetti, 39 AD3d 981, 982 [2007]; Pacheco v United Med. Assoc.,305 AD2d 711, 714 [2003]; compare Citibank v Chicago Tit. Ins. Co., 214 AD2d at216-218; Cruz v Commonwealth Land Tit. Ins. Co., 157 AD2d 333, 337 [1990]).Accordingly, we discern no abuse of discretion in Supreme Court's denial of plaintiff's motion toamend the complaint to add a negligence claim against Chicago Title and we decline to disturb it(see generally Gersten-Hillman Agency,Inc. v Heyman, 68 AD3d 1284, 1289 [2009]; Pagan v Quinn, 51 AD3d 1299, 1300 [2008]).
Plaintiff's remaining contentions, to the extent they are not specifically addressed herein,have been considered and are unavailing.
Mercure, J.P., Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.