| Femia v Graphic Arts Mut. Ins. Co. |
| 2012 NY Slip Op 08091 [100 AD3d 954] |
| November 28, 2012 |
| Appellate Division, Second Department |
| Sandro Femia, Respondent, v Graphic Arts MutualInsurance Co., Respondent, and Dayton & Osborne, LLC, Appellant, et al.,Defendant. |
—[*1] Weg & Myers, P.C., New York, N.Y. (Joshua L. Mallin and Rebecca A. Barrett of counsel),for plaintiff-respondent. Faust Goetz Schenker & Blee LLP, New York, N.Y. (Christopher B. Kinzel of counsel), fordefendant-respondent.
In an action, inter alia, to recover damages for breach of an insurance contract, the defendantDayton & Osborne, LLC, appeals, as limited by its brief, from so much of an order of theSupreme Court, Suffolk County (Spinner, J.), dated December 30, 2010, as denied its motion forsummary judgment dismissing the fourth and fifth causes of action and the cross claims of thedefendant Graphic Arts Mutual Insurance Co., insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable by the respondents, and the motion of the defendant Dayton & Osborne, LLC, forsummary judgment dismissing the fourth and fifth causes of action and the cross claims of thedefendant Graphic Arts Mutual Insurance Co., insofar as asserted against it is granted.
The Supreme Court improperly declined to consider the deposition transcripts submitted bythe defendant Dayton & Osborne, LLC (hereinafter Dayton), in support of its motion forsummary judgment where the transcripts were certified by the reporter and their accuracy was notchallenged (see Pevzner v 1397 E. 2nd,LLC, 96 AD3d 921 [2012]; Boadu v City of New York, 95 AD3d 918 [2012]; Zalot v Zieba, 81 AD3d 935[2011]; see also Rodriguez v RyderTruck, Inc., 91 AD3d 935, 936 [2012]; Ashif v Won Ok Lee, 57 AD3d 700 [2008]).
"Generally, the law is reasonably settled on initial principles that insurance agents have acommon-law duty to obtain requested coverage for their clients within a reasonable time orinform the client of the inability to do so" (Murphy v Kuhn, 90 NY2d 266, 270 [1997];see Core-Mark Intl. v Swett & CrawfordInc., 71 AD3d 1072 [2010]; Reilly v Progressive Ins. Co., 288 AD2d 365[2001]; Chaim v Benedict, 216 AD2d 347 [1995]; Erwig v Cook Agency, 173AD2d 439 [1991]). In order for a broker to be held liable under theories of breach of contract ornegligence for failing to procure insurance, a plaintiff must demonstrate that the 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 (see Bedessee Imports, Inc. v Cook, Hall &Hyde, Inc., 45 AD3d 792 [2007]; Katz v Tower [*2]Ins. Co. of N.Y., 34AD3d 432 [2006]; Mickey'sRides-N-More, Inc. v Anthony Viscuso Brokerage, Inc., 17 AD3d 328 [2005];Structural Bldg. Prods. Corp. v Business Ins. Agency, 281 AD2d 617 [2001]).
Here, Dayton demonstrated its prima facie entitlement to judgment as a matter of lawdismissing the fourth and fifth causes of action to recover damages for negligence and breach ofcontract, respectively, insofar as asserted against it by submitting evidence showing that itprocured the specific insurance coverage requested by the plaintiff (see Loevner v Sullivan & Strauss Agency,Inc., 35 AD3d 392 [2006]). Moreover, the record is devoid of evidence of a specialrelationship between Dayton and the plaintiff that would give rise to a continuing duty onDayton's part to advise the plaintiff to obtain additional coverage (see Murphy v Kuhn,90 NY2d at 271; Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d at 394-395; W. Joseph McPhillips, Inc. v Ellis, 8AD3d 782 [2004]). In opposition, the plaintiff failed to raise a triable issue of fact.Therefore, the Supreme Court should have granted that branch of Dayton's motion which was forsummary judgment dismissing the fourth and fifth causes of action insofar as asserted against it.
Further, Dayton established, prima facie, its entitlement to judgment as a matter of lawdismissing the cross claims of the defendant Graphic Arts Mutual Insurance Co. (hereinafterGraphic Arts) for contractual and common-law indemnification insofar as asserted against it. Inopposition to Dayton's prima facie showing, Graphic Arts failed to raise a triable issue of fact asto whether Dayton violated its duty to report truthfully with respect to information requested onthe application for insurance (see Equitable Life Assur. Socy. of U.S. v Werner, 286AD2d 632 [2001]; Anne M. Payne & Joseph Wilson, New York Insurance Law § 6:43 at254 [31 West's NY Prac Series 2011-2012]), or whether Graphic Arts itself was without fault incausing the plaintiff's loss (see BedesseeImports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d 792 [2007]; cf. General Acc. Ins.Co. v Smith & Assoc., 184 AD2d 616, 617 [1992]). Therefore, the Supreme Court shouldhave granted that branch of Dayton's motion which was for summary judgment dismissing thecross claims of Graphic Arts insofar as asserted against it. Florio, J.P., Leventhal, Austin andCohen, JJ., concur. [Prior Case History: 2010 NY Slip Op 33683(U).]