| United States Fire Ins. Co. v North Shore Risk Mgt. |
| 2014 NY Slip Op 00597 [114 AD3d 408] |
| February 4, 2014 |
| Appellate Division, First Department |
| United States Fire Insurance Company,Respondent-Appellant, v North Shore Risk Management,Respondent-Appellant/Third-Party Plaintiff-Respondent-Appellant. Crump InsuranceServices, Inc., et al., Third-PartyDefendants-Appellants-Respondents. |
—[*1] Kaufman Borgeest & Ryan, LLP, Valhalla (Edward J. Guardaro, Jr. of counsel), forInter-Reco Inc., appellant-respondent. Carroll, McNulty & Kull L.L.C., New York (Ann Odelson of counsel), for UnitedStates Fire Insurance Company, respondent-appellant. McGaw, Alventosa & Zajac, Jericho (James K. O'Sullivan of counsel), for NorthShore Risk Management, respondent-appellant.
Orders, Supreme Court, New York County (Carol Edmead, J.), entered April 3, 2012and on or about September 19, 2012, which, to the extent appealed from as limited by thebriefs, granted North Shore Risk Management's request to file a separate motion forsummary judgment dismissing US Fire's complaint based on statute of limitationsgrounds, denied North Shore's CPLR 3211 motion to dismiss US Fire's complaint,denied that portion of Crump's motion seeking dismissal of North Shore's third-partyclaim for contribution, and denied Inter-Reco's motion to dismiss the third-partycomplaint, unanimously modified, on the law, to grant North Shore's motion to file aseparate motion for summary judgment against US Fire solely with respect to the breachof contract claim, and otherwise affirmed, without costs.
The main issue in dispute is whether the primary insurance policy issued by theInsurance Corp. of New York (Inscorp) to its insured, nonparty BFC Construction Corp.,contained a single general aggregate, or a per construction site general aggregate, andthus [*2]whether US Fire's excess policy was triggered.
Since US Fire's contract claim accrued in 2001, when North Shore brokered thepolicies, US Fire's action, commenced in 2009 (CPLR 213), would be untimely absentsome exception. US Fire's remaining tort claims against North Shore were not barred bythe statute of limitations, however. Accordingly, that portion of North Shore's motionrequesting leave to file a motion for summary judgment asserting a statute of limitationsdefense should be affirmed solely as to US Fire's breach of contract claim (seeLamendola v Mossa, 190 Misc 2d 147, 149 [App Term, 2d Dept 2001], citingEly-Cruikshank Co. v Bank of Montreal, 81 NY2d 399 [1993]; see alsoVarga v Credit-Suisse, 5 AD2d 289, 292 [1st Dept 1958], affd 5 NY2d 865[1958]).
North Shore's CPLR 3211 motion to dismiss US Fire's complaint was properlydenied, as the documentary evidence, i.e., the affidavits and emails of North Shore andInter-Reco personnel, do not qualify as "documentary evidence" for purposes of CPLR3211 (a) (1) (see Lawrence vGraubard Miller, 11 NY3d 588, 595 [2008]; Rodolico v Rubin & Licatesi, P.C., 112 AD3d 608, 610[2d Dept 2013]).
Although the agency agreement between US Fire and North Shore shows that NorthShore was required to solicit, receive and send proposals for commercial line insurancecontracts, it was only through the documentation and representations presented by NorthShore that the US Fire policy was issued with the express understanding that the Inscorppolicy contained a separate per project aggregate limit. Thus, while the motion courtcorrectly dismissed North Shore's indemnification claims against the wholesale brokerand underwriter third-party defendants based on the absence of vicarious liability, thecontribution claim remained viable against the potential tortfeasors (see Guzman vHaven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 567-568 [1987]).
North Shore's third-party negligent misrepresentation claims, to which a three-yearstatute of limitations applied (see Colon v Banco Popular N. Am., 59 AD3d 300, 301 [1stDept 2009]), were timely, as there was no injury to North Shore until US Firecommenced its action against North Shore on March 27, 2009 (see Bonded Waterproofing Servs.,Inc. v Anderson-Bernard Agency, Inc., 86 AD3d 527, 530 [2d Dept 2011]).
Further, since the documentary evidence submitted by Crump and/or Inter-Reco,including the Inscorp insurance application and declarations pages, did not resolve "allfactual issues as a matter of law, and conclusively dispose[ ] of the plaintiff's claim[s]"(Bonded Waterproofing Servs., Inc., 86 AD3d at 529 [internal quotation marksomitted]), that portion of the third-party defendants' motions to dismiss the claim fornegligent misrepresentation was properly denied. Accepting North Shore's allegations astrue, the motion court also properly denied dismissal of this claim for failure to state acause of action on the ground that discovery was necessary to determine the relationshipbetween the parties and the promises that were made (see Murphy v Kuhn, 90NY2d 266, 270-271 [1997]).
Inter-Reco's argument that there can be no liability of an agent acting on behalf of adisclosed principal (such as Inscorp) (see A.B.N. Jewelry v American Alliance Ins.Co., 242 AD2d 457 [1st Dept 1997]) was properly rejected by the motion court, asthe documentary evidence establishes only that Inter-Reco historically issued the subjectendorsement believing [*3]that if the designated boxwere left empty, the aggregate limit applied to each construction site. Since Inscorpdisagrees, discovery must proceed to determine the intent of the parties.Concur—Mazzarelli, J.P., Acosta, Saxe and Moskowitz, JJ. [Prior CaseHistory: 2012 NY Slip Op 33239(U).]