Page One Auto Sales, Inc. v. Brown & Brown of New York, Inc. , 921 N.Y.S.2d 749 ( 2011 )

Appeal from an order of the Supreme Court, Monroe County (Ann Marie Taddeo, J.), entered April 6, 2010. The order denied the motion of plaintiff for summary judgment and granted the cross motion of defendant for summary judgment.

It is hereby ordered that the order so appealed from is modified on the law by denying defendant’s cross motion and reinstating the complaint and as modified the order is affirmed without costs.

Memorandum: Plaintiff, an automobile dealership, commenced this action seeking damages for the alleged breach by defendant, plaintiffs insurance broker, of its duty to procure an insurance policy containing “false pretense coverage,” which is intended to cover losses in the event that plaintiff purchased automobiles with defective titles. We agree with plaintiff that Supreme Court erred in granting defendant’s cross motion for summary judgment dismissing the complaint, and we therefore modify the order accordingly. “ ‘In New York, the duty owed by an insurance agent to an insurance customer is ordinarily defined by the nature of the request a customer makes to the agent’ ” (Chase’s Cigar Store v Stam Agency, 281 AD2d 911, 912 [2001]; see Wied v New York Cent. Mut. Fire Ins. Co., 208 AD2d 1132, 1133 [1994]). “Where . . . there is a specific request for insurance, the agent has a duty to obtain the requested coverage or to inform the client of his or her inability to do so” (Herdendorf v GEICO Ins. Co., 77 AD3d 1461, 1463 [2010]; see Murphy v Kuhn, 90 NY2d 266, 270 [1997]; Twin Tiers Eye Care Assoc. v First Unum Life Ins. Co., 270 AD2d 918 [2000], lv denied 95 NY2d 758 [2000]). “In such a case, it must be demonstrated that the coverage could have been procured prior to the occurrence of the insured event” (Herdendorf, 77 AD3d at 1463; see American Motorists Ins. Co. v Salvatore, 102 AD2d 342, 346 [1984]).

Viewing the evidence in the light most favorable to the nonmoving party, as we must (see Russo v YMCA of Greater Buffalo, 12 AD3d 1089 [2004], lv dismissed 5 NY3d 746 [2005]), we conclude that there are triable issues of fact whether defendant breached its duty to procure the insurance coverage requested by plaintiff (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Further, although the insured’s receipt of the insurance policy at issue may in some cases provide a complete defense to the insured’s action against an agent or broker for failing to procure certain coverage (see e.g. Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 19 AD3d 1056, 1057-1058 [2005], affd on other grounds 7 NY3d 152 [2006]; Laconte v Bashwinger Ins. Agency, 305 AD2d 845, 846 [2003]), it does not provide such a defense in this case. Where, as here, there is evidence establishing that the insured made requests for the missing coverage subsequent to receipt of the policy, the broker has a renewed “duty to obtain the requested coverage or to inform the client of [its] inability to do so” (Herdendorf, 11 AD3d at 1463).

We further conclude, however, that the court properly denied plaintiff’s motion for, inter alia, summary judgment on the complaint inasmuch as the record demonstrates that triable issues of fact exist with respect to both defendant’s liability and the amount of damages recoverable by plaintiff (see generally Zuckerman, 49 NY2d at 562).

All concur except Peradotto, J., who dissents and votes to affirm in the following memorandum.