Civil Court, City of New York,
Bronx County.
AGCS MARINE INSURANCE COMPANY, Plaintiff,
v.
BAYVIEW REAL ESTATE CONSULTANTS, INC., Defendant.
Bayview Real Estate Consultants, Inc, Third–Party Plaintiff,
Mt. Hawley Insurance Company and City Underwriting Agency, Inc., Third–Party Defendants.
No. 69093/11.
Jan. 17, 2013.
Christopher A. Wong, Esq., Bruce Somerstein & Assoc., PC, New York, for Plaintiff.
Timothy E. Delahunt, Esq., Kenney Shelton Liptak Nowak, LLP, Buffalo, for Third–Party Defendant (Mt.Hawley).
Howard S. Kronberg, Esq., Keidel, Weldon & Cunningham, LLP, White Plains, for Third–Party Defendant (City).
Eugene O’Neill, Esq., Law Offices of Ira L. Slade, PC, New York, for Defendant/Third–Party Plaintiff.
JOSEPH E. CAPELLA, J.
*1 RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY PLAINTIFF AND CROSS MOTION BY DEFENDANT FOR SUMMARY JUDGMENT
OTHER (MEMO OF LAW & ATTORNEY AFFIRMATION)
PAPERS NUMBERED
NOTICE OF MOTION
1
ANSWERING AFFIDAVITS
—
REPLY AFFIDAVITS
3
EXHIBITS
—
2
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
This pre-answer motion by third-party defendant, City Underwriting Agency, Inc. (“City”), seeks dismissal of the third-party complaint based upon documentary evidence (CPLR 3211(a)(1)) and a failure to state a cause of action (3211(a)(7)). The following facts are not in dispute. The third-party plaintiff, Bayview Real Estate Consultants, Inc. (“Bayview”), is a construction contractor, and City was its insurance broker. At all relevant time, Bayview had commercial liability insurance that City had obtained from third-party defendant, Mt. Hawley Insurance Company (“Mt.Hawley”). On or about September 23, 2010, Bayview rented a portable generator from United Rentals, Inc. (“United”), for use at a property upon which Bayview was performing construction work. On that day, Bayview sent an e-mail (“Bayview e-mail”) to City that included the following single statement: “Can you please issue a certificate for the attached.” Attached to the e-mail was a document from United (“United document”) entitled “Certificate of Insurance Requirements” that listed the insurance requirements for various types of rentals as follows:
General Liability:
Occurrence Form
Minimum Coverage Limit $1,000,000
Auto Liability:
$1,000,000 (Required if Renting a Vehicle)
Worker’s Compensation:
Statutory Coverage
Contractor’s Equipment:
Inland Marine
All Risk/Special Form—Replacement Cost
Maximum Deductible: $500.00
On September 24, 2010, City issued a Certificate of Insurance to Bayview listing the Mt. Hawley liability policy already in effect. And on or about January 10, 2011, the portable generator was stolen by an unknown party from the property upon which Bayview was performing construction work. United submitted a claim for the loss to its insurer and the plaintiff in this action, AGCS Marine Insurance Company (“AGCS”), which then paid the claim and assumed the rights thereon as subrogee. AGCS then demanded that Bayview pay for the loss, and Bayview in turn demanded that Mt. Hawley pay for the loss. On April 20, 2011, Mt. Hawley denied coverage because Bayview’s liability policy excludes property damage for rented property, and soon thereafter the instant third-party action commenced.
Dismissal pursuant to CPLR 3211(a)(1) is only warranted where the documentary evidence submitted conclusively establishes a defense to the asserted claim as a matter of law. ( 511 West v. Jennifer, 98 N.Y.2d 144 [2002].) And dismissal pursuant to CPLR 3211(a)(7) is only warranted after the complaint is first afforded a liberal construction, and the facts alleged therein are accepted as true and accorded the benefit of every possible inference, and then only if those facts, as alleged, fail to state a cause of action. ( Frank v. Daimlerchrysler, 292 A.D.2d 118 [1st Dept 2002].) However, the third-party complaint by Bayview introduced extrinsic evidence, namely the Bayview e-mail and United document, and so the more appropriate standard now under CPLR 3211(a)(7) is not whether a cause of action is stated but whether there is a cause of action. ( Bokhour v. GTI, 94 AD3d 682 [2nd Dept 2012].) On November 15, 2012, Bayview filed and served an amended third-party complaint alleging two causes of action, the first is against Mt. Hawley and the second is against City.
*2 The second cause of action in the amended third-party complaint alleges that “[w]hen Bayview asked City to provide a certificate for the attached’ City had a duty to either procure that inland marine insurance or to advise Bayview that Bayview was not covered for all the Requirements listed by United, and that City could not issue a certificate of insurance for inland marine coverage.” The Bayview e-mail, the United document, and the certificate of insurance from City are attached and made reference to the third-party complaint.FN1 And except for referring to and attaching a copy of the Bayview e-mail, the third-party complaint does not allege any other correspondence(s) and/or communication(s) between Bayview and City regarding the procurement of inland marine insurance.FN2 The third-party complaint also does not allege the existence of a “special relationship.” If any of the aforementioned had been plead, then the instant CPLR 3211 motion could be viewed as premature and denied without prejudice to the matter ultimately being resolved in a more embracive and exploratory CPLR 3212 motion for summary judgment. Therefore, given the aforementioned, it would appear that resolution of Bayview’s second cause of action against City is predicated exclusively on the documentary evidence consisting of the Bayview e-mail and the United document, and the facts alleged in the third-party complaint.
FN1. Given that Bayview only had liability insurance, City left blank those portions of the certificate of insurance that referenced “automobile liability,” “worker’s compensation” and “other.”
FN2. For example, the complaint does not allege that Bayview somehow notified City either before or after the Bayview e-mail, that it was renting a portable generator from United.
It is reasonably well settled that the purchase of insurance through an agent does not establish a professional relationship, which in turn creates a fiduciary obligation, between the agent and the customer. ( Goshen v. Mutual, 259 A.D.2d 360 [1st Dept 1999].) And precisely because there is no professional relationship, (Chase v. NIA, 96 N.Y.2d [2001] ), absent a “specific request” for coverage, or the existence of a “special relationship,” ( Curanovic v. N.Y. Cent., 307 A.D.2d 435 [3rd Dept 2003] ), an insurance agent is not liable to an insured for failing to procure coverage not already in the policy or for failing to procure a particular type or amount of coverage. ( Hoffend v. Rose, 7 NY3d 152 [2006]; Murphy v. Kuhn, 90 N.Y.2d 266 (1977); Verbert v. Garcia, 63 AD3d 1149 [2009].) Nor is there any continuing duty to advise, guide or direct the insured to obtain additional coverage absent a “specific request” or “special relationship.” ( Hoffend, 7 NY3d 152; Murphy, 90 N.Y.2d 266.) As for “special relationships,” they only exists where there has been a course of dealing over an extended period of time which would have put an objectively reasonable insurance agent on notice that their advice was being sought and relied upon. ( Murphy, 90 N.Y.2d 266.) But as already noted, a “special relationship” is not alleged in the third-party complaint.
Based on the aforementioned, the court is satisfied that when Bayview asked City to provide a “certificate for the attached” United document, which listed the insurance requirements for various types of rentals, this request did not constitute a “specific request” for City to procure inland marine insurance. ( Hoffend, 7 NY3d 152; Murphy, 90 N.Y.2d 266.) And without a “specific request” or an allegation that a “special relationship” existed, City had no duty to procure inland marine insurance, advise Bayview that it was not covered for all of the items listed on the United document, or advise Bayview that City could not issue a certificate of insurance for inland marine coverage. ( Hoffend, 7 NY3d 152; Murphy, 90 N.Y.2d 266; Curanovic, 307 A.D.2d 435.) Therefore, the instant motion by City is granted and Bayview’s third-party complaint against City is dismissed. City is directed to serve a copy of this decision/order with notice of entry upon all sides by first class mail within thirty days of receipt of this decision/order.
*3 This constitutes the decision and order of this court.
