Stevens v. Hickey-Finn & Co. , 691 N.Y.S.2d 411 ( 1999 )

—Order, Supreme Court, New York County (Sheila AbdusSalaam, J.), entered on or about September 21, 1998, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

It is undisputed that when it came time for plaintiff to renew his home insurance policy in 1994 he contacted defendant brokerage agency and spoke to the agent through whom he had periodically purchased home insurance during most of the preceding decade. Plaintiff requested “proper and adequate” coverage for his home, which had recently been improved, and, in response, the agent, as she had in prior years, utilized a “Home Aestimator” computer program to check that the level of coverage to be afforded was indeed “proper and adequate”. Thereafter, a home insurance policy containing a coverage cap of $176,000 was issued to plaintiff by third-party defendant Standard Fire Insurance Company. In the aftermath of a fire at the insured premises, plaintiff discovered that, in fact, he had been seriously underinsured; his damages allegedly exceeded his coverage by some $96,374. Even if plaintiff’s request to the agent to obtain “proper and adequate” coverage for his recently improved home did not itself trigger a duty on the agent’s part to assure that plaintiff’s home was completely insured against property loss, once the agent, in response to plaintiffs request for “proper and adequate” coverage, undertook to estimate the replacement value of the property to be insured, she owed plaintiff a duty to perform that estimation with a reasonable degree of care and accuracy (see, Gediman v Anheuser Busch, 299 F2d 537, 546, citing Glanzer v Shepard, 233 NY 236, 239). In view of the significant disparity between plaintiffs alleged loss and his coverage, a triable issue is raised as to whether the duty assumed in this case by plaintiffs broker was discharged by the agent’s use of the above-mentioned “Home Aestimator” program. Concur — Ellerin, P. J., Rosenberger, Williams, Andrias and Saxe, JJ.