Opinion
Index No. 113748/2011
02-06-2015
MARC KRITZER and MICHELLE KRITZER, Plaintiffs v. VENTURA INSURANCE BROKERAGE, INC., and SYLVIA ALSTON, Defendants
DECISION AND ORDER
:
I. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffs sue defendant Ventura Insurance Brokerage, Inc., for the unrecovered value of a lost diamond ring due to defendants' (1) negligent procurement of insurance, (2) negligent misrepresentation, and (3) breach of a contract. The crux of plaintiffs' claims is defendant's failure to exercise reasonable diligence to procure an insurance policy for plaintiffs that effectively and fully covered the personal property insured. Since plaintiffs have stipulated to discontinue their action against Ventura Insurance Brokerage's employee, insurance broker Alston, the remaining defendant corporation, Ventura Insurance Brokerage, moves to dismiss the action pursuant to C.P.L.R. § 3211(a).
After plaintiffs were dissatisfied with their prior insurance policy that capped coverage of their lost jewelry at too low an amount, and when their prior policy expired in 2009, defendant procured insurance coverage under a Fireman's Fund Insurance Company policy for the value of plaintiffs' remaining jewelry, a gold watch and a diamond ring. Plaintiffs allege that Alston assured them the policy included "blanket coverage" of up to $150,000 for their jewelry. Aff. of Roberta E. Ashkin Ex. A ¶¶ 23-24, 28. The parties agree that "blanket coverage" means coverage per occurrence. When plaintiffs lost the 6.48 carat diamond on their diamond ring, Fireman's Fund provided plaintiffs coverage of $50,000, the limit for any item not scheduled under the policy, instead of the full replacement cost, as the diamond ring was not specifically scheduled under the policy.
Plaintiffs claim defendant failed to (1) procure the full coverage plaintiffs requested, (2) advise them that the Fireman's Fund policy only provided up to $50,000 for any valuable item unless specifically scheduled in the policy, and (3) correct their misapprehension that defendant created regarding the policy's coverage. They seek damages for the difference between the diamond's market value and the coverage received under the policy procured.
II. THE MOTION'S TIMELINESS
Defendant's notice of motion seeks dismissal of the complaint pursuant to C.P.L.R. § 3211(a)(2), (5), (7), and (8), but its attorney's affirmation specifies and supports the relief sought as pursuant to C.P.L.R. §§ 3211(a)(1) and (7). Defendant makes no attempt to support dismissal on any of the grounds specified in § 3211(a)(2), (5), or (8) and at this stage has waived relief pursuant to paragraph 8. C.P.L.R. § 3211(e). Defendant also has waived any defense "founded upon documentary evidence" under § 3211(a)(1) by failing to raise it (1) by a motion to dismiss the complaint "before service of the responsive pleading is required" or (2) "in the responsive pleading." C.P.L.R. § 3211(e). Therefore the court denies defendant's motion insofar as it seeks dismissal pursuant to C.P.L.R. § 3211(a)(1), (2), (5), and (8).
The affirmation by defendant's attorney also specifies the relief sought as summary judgment pursuant to C.P.L.R. § 3212(b), notwithstanding that the notice of motion does not request such relief. Defendant concedes, however, that a motion for summary judgment is untimely under the stipulated Preliminary Conference Order dated June 21, 2012, which set a deadline of 60 days after the filing of the note of issue for "dispositive motion(s)" to be served. Aff. of Brian H. Brick Ex. H, at 2.
When the court sets the time within which a party may move for summary judgment under C.P.L.R. § 3212(a), the court may not excuse lateness without a showing of good cause. Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 83 (1st Dep't 2014); Quinones v. Joan & Sanford I. Weill Med. Coll. & Graduate Sch. of Med. Sciences of Cornell Univ., 114 A.D.3d 472, 473 (1st Dep't 2014); Ford v. City of New York, 54 A.D.3d 263, 266 (1st Dep't 2008). Defendant failed to seek an extension of time to move for summary judgment either before or when seeking that relief, Fiere-Crespo v. 345 Park Ave. L.P., 122 A.D.3d 501, 502 (1st Dep't 2014); Kershaw v. Hospital for Special Surgery, 114 A.D.3d at 82, and only in reply to plaintiffs' opposition insists that the 60 days stipulated by the parties and approved by the court was a mistake. Cabriel v XYZ Assoc., L.P., 36 A.D.3d 498, 498 (1st Dep't 2007). See Kershaw v. Hospital for Special Surgery, 114 A.D.3d at 86. While the mistaken belief of defendant's attorney that no deadline shorter than the 120 days provided by C.P.L.R. § 3212(a) had been imposed may explain defendant's failure to seek an extension, an attorney's inadvertence does not amount to the good cause required to excuse the lateness. Kershaw v. Hospital for Special Surgery, 114 A.D.3d at 86; Quinones v. Joan & Sanford I. Weill Med. Coll. & Graduate Sch. of Med. Sciences of Cornell Univ., 114 A.D.3d at 473; Fofana v. 41 W. 34th St., LLC, 71 A.D.3d 445, 448 (1st Dep't 2010); Ford v. City of New York, 54 A.D.3d at 267. Therefore the court denies defendant's motion insofar as it seeks summary judgment under C.P.L.R. § 3212. Fiere-Crespo v. 345 Park Ave. L.P., 122 A.D.3d at 502; Quinones v. Joan & Sanford I. Weill Med. Coll. & Graduate Sch. of Med. Sciences of Cornell Univ., 114 A.D.3d at 474; Kershaw v. Hospital for Special Surgery, 114 A.D.3d at 82; Cabriel v XYZ Assoc., L.P., 36 A.D.3d at 499.
C.P.L.R. § 3212(a), however, permitting the court to "set a date after which no such motion may be made," applies only to motions for summary judgment. No authority permits the court to abrogate C.P.L.R. § 3211(e)'s provision that a motion pursuant to C.P.L.R. § 3211(a)(7), failure to state a claim, "may be made at any . . . time." E.g., Stolarski v. Family Servs. of Westchester, Inc., 110 A.D.3d 980, 982 (2d Dep't 2013). While the parties themselves stipulated to a deadline for "dispositive motion(s)," Brick Aff. Ex. H, at 2, plaintiffs maintain only that defendant's motion pursuant to C.P.L.R. § 3212(b) is untimely under § 3212(a) and not that its motion pursuant to C.P.L.R. § 3211(a)(7) is untimely under § 3211(e). Nor do plaintiffs offer any support for simply assuming that "dispositive motion(s)" includes a motion pursuant to C.P.L.R. § 3211(a)(7). Absent any evidentiary or legal support for such an interpretation, C.P.L.R. § 3211(e)'s authorization that a motion based on C.P.L.R. § 3211(a)(7) "may be made at any . . . time" and C.P.L.R. § 3212(a)'s limitation to motions for summary judgment, "dispositive motion(s)" in this context must be interpreted as encompassing only motions for summary judgment. Kershaw v. Hospital for Special Surgery, 114 A.D.3d at 82; Fofana v. 41 W. 34th St., LLC, 71 A.D.3d at 447; Anzalone v. Pan-Am Equities, 271 A.D.2d 307, 308 (1st Dep't 2000); Coling v. Ambulette Serv. v. Empire Ins. Co., 262 A.D.2d 187, 187 (1st Dep't 1999). See Crawford v. Liz Claiborne, Inc., 11 N.Y.3d 810, 812 (2008); Quinones v. Joan & Sanford I. Weill Med. Coll. & Graduate Sch. of Med. Sciences of Cornell Univ., 114 A.D.3d at 4 72; Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 448-49 & n.* (1st Dep't 2013); Rahman v. Domber, 45 A.D.3d 497, 497 (1st Dep't 2007).
In any event, C.P.L.R. § 3212(a)'s strict requirements for a showing of "good cause" applicable to a dispositive motion pursuant to § 3212(b) are not applicable to an extension of any deadline set by a stipulation or an order for a motion pursuant to C.P.L.R. § 3211(a)(7). Absent another applicable standard, the standards under C.P.L.R. §§ 2004 and 2005 apply. Under §§ 2004 and 2005, an attorney's mistake or inadvertence does amount to the "good cause" required to excuse lateness. C.P.L.R. § 2004; Metropolitan Prop. & Cas. Ins. Co. v. Braun, 120 A.D.3d 1128, 1128 (1st Dep't 2014); N450JE LLC v. Priority 1 Aviation, Inc., 102 A.D.3d 631, 633 (1st Dep't 2013). Therefore the mistake or inadvertence by defendant's attorney in believing that a deadline of 120 days had been set for dispositive motions does amount to a reasonable, acceptable excuse for a delay of less than six weeks that has caused no discernible prejudice to plaintiffs. Rosenblatt v. New York City Tr. Auth., 122 A.D.3d 410, 411 (1st Dep't 2014); Metropolitan Prop. & Cas. Ins. Co. v. Braun, 120 A.D.3d at 1128; Daval-Ogden, LLC v. High-bridge House Qgden, LLC, 103 A.D.3d 422, 422 (1st Dep't 2013); N450JE LLC v. Priority 1 Aviation, Inc., 102 A.D.3d at 633. For these reasons, the court considers defendant's motion under C.P.L.R. § 3211(a)(7) on its merits, just as plaintiffs have treated it.
III. DISMISSAL BASED ON PLAINTIFFS' FAILURE TO STATE A CLAIM
Upon a motion to dismiss pursuant to C.P.L.R. § 3211(a)(7), the court accepts the complaint's allegations as true and draws all inferences in plaintiffs' favor. Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 351 (2013); Art & Fashion Group Corp. v. Cyclops Prod., Inc., 120 A.D.3d 436, 437 (1st Dep't 2014); Amsterdam Hospitality Group, LLC v. Marshal-Alan Assoc., Inc., 120 A.D.3d 431, 432 (1st Dep't 2014); Cabrera v. Collazo, 115 A.D.3d 147, 150 (1st Dep't 2014). Dismissal is warranted only if the complaint fails to allege facts that fit within any cognizable legal theory, Nonnon v. City of New York, 9 N.Y.3d 825, 827 (2007); Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 570-71 (2005); Mill Financial, LLC v. Gillett, 122 A.D.3d 98, 103 (1st Dep't 2014); Cabrera v. Collazo, 115 A.D.3d at 151, even if plaintiffs do not articulate the precise legal claim. Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d at 351; Leon v. Martinez, 84 N.Y.2d 83, 88 (1994); Lee v. Dow Jones & Co., Inc., 121 A.D.3d 548, 549 (1st Dep't 2014); Sigmund Strauss, Inc. v. East 149th Realty Corp., 104 A.D.3d 401, 403 (1st Dep't 2013).
A. Plaintiffs State a Claim for Negligence.
As an insurance broker, defendant owed a duty to exercise due care to procure the coverage plaintiffs requested within a reasonable time or advise them of defendant's inability to do so. Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 734 (2014); American Bldg. Supply Corp. v. Petrocelli Group, Inc., 19 N.Y.3d 730, 735 (2012); Hoffen & Sons, Inc. v. Rose & Kiernan, Inc., 7 N.Y.3d 152, 157 (2006); Cosmos, Queens Ltd. v. Matthias Saechang Im Agency, 74 A.D.3d 682, 683 (1st Dep't 2010). Plaintiffs are entitled to recover damages when the insurance policy defendant procured does not cover a loss for which plaintiffs particularly requested coverage. Voss v. Netherlands Ins. Co., 22 N.Y.3d at 734; American Bldg. Supply Corp. v. Petrocelli Group, Inc., 19 N.Y.3d at 735-36; Cosmos, Queens Ltd. v. Matthias Saechang Im Agency, 74 A.D.3d at 683.
By alleging that defendant failed to procure the coverage plaintiffs requested for the full value of their diamond ring, the complaint adequately states a claim for negligence. C.P.L.R. § 3211(a)(7). See American Bldg. Supply Corp. v. Petrocelli Group, Inc., 19 N.Y.3d at 735-36; Cosmos, Queens Ltd. v. Matthias Saechang Im Agency, 74 A.D.3d at 683; Hersch v. DeWitt Stern Group, Inc., 43 A.D.3d 644, 644-45 (1st Dep't 2007). The complaint's allegations also indicate defendant's awareness of the coverage plaintiffs sought by specifying that defendant knew of their prior inadequate coverage and their particular concern for coverage of the diamond ring. Ashkin Aff. Ex. A. ¶ 22. Defendant then assured them the Fireman's Fund "blanket coverage" policy would cover the market value of their jewelry up to the liability limit of $150,000, even if an item was not specifically scheduled under the policy. Id. ¶¶ 23-24, 28. See id. ¶¶ 39, 41. The complaint further alleges that defendant knew their diamond ring was valued at more than the $50,000 limit per item, but negligently failed to advise plaintiffs to schedule the ring to cover its full market value under the Fireman's Fund policy that defendant procured. Id. ¶¶ 39-41. Moreover, since defendant had obtained plaintiffs' prior policy, which included an appraisal for the diamond ring specifically scheduled under that policy, defendant possessed documentation of the ring's valuation required for defendant to schedule the ring under the Fireman's Fund policy and procure full coverage for the ring's market value. Id. ¶¶ 16, 20, 28. Finally, by alleging defendant's failure to advise plaintiffs that, absent their scheduling their diamond ring, defendant had not procured coverage for the full value of the ring as plaintiffs requested, they meet the second prong of the negligence standard. American Bldg. Supply Corp. v. Petrocelli Group, Inc., 19 N.Y.3d at 735; Cosmos, Queens Ltd. v. Matthias Saechang Im Agency, 74 A.D.3d at 683; Hersch v. DeWitt Stern Group, Inc., 43 A.D.3d at 645.
Even absent plaintiffs' specific request, the above allegations, plus the allegations set forth below, indicate their interaction with Alston regarding the coverage provided by the Fireman's Fund policy and their reliance on defendant's expertise. Such reliance may create a special relationship between plaintiffs and defendant, imposing on it an enhanced duty to advise plaintiffs adequately regarding coverage to meet their needs. Voss v. Netherlands Ins. Co., 22 N.Y.3d at 735; Trans High Corp. v. Pollack Assocs., LLC, 74 A.D.3d 489, 489 (1st Dep't 2010).
The complaint, supplemented by plaintiff Marc Kritzer's affidavit, which the court may consider in opposition to defendant's motion under C.P.L.R. § 3211(a)(7), Nonnon v. City of New York, 9 N.Y.3d at 827; Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366 (1998); Ray v. Ray, 108 A.D.3d 449, 452 (1st Dep't 2013); Thomas v. Thomas, 70 A.D.3d 588, 591 (1st Dep't 2010), recount his discussion with Alston about switching to an insurance policy procured by defendant. Ashkin Aff. Ex. A ¶¶ 22-25; Aff. of Marc Kritzer ¶¶ 9-11, 13, 15. When defendant recommended coverage of $250,000 in the blanket policy for the value of plaintiffs' jewelry, he requested that defendant reduce the coverage to $150,000 for their jewelry, specifically the diamond ring. Ashkin Aff. Ex. A ¶¶ 27-28; Kritzer Aff. ¶¶ 16-17, 22. Alston assured him that the jewelry items would be covered up to the coverage limit, without the coverage limitations in their prior policy. Ashkin Aff. Ex. A ¶¶ 23-24; Kritzer Aff. ¶¶ 11, 13. Based on this assurance, plaintiffs appointed defendant as their exclusive insurance broker. Ashkin Aff. Ex. A ¶¶ 24-25; Kritzer Aff. ¶¶ 13-15. This discussion suggests an interaction regarding coverage, in which Marc Kritzer relied on defendant's expertise to ensure that the value of plaintiffs' diamond ring was covered fully. Voss v. Netherlands Ins. Co., 22 N.Y.3d at 735-36. See Trans High Corp. v. Pollack Assocs., LLC, 74 A.D.3d at 489-90.
Even if analyzed under C.P.L.R. § 3212(b), the Verified Complaint and Marc Kritzer's affidavit raise factual issues precluding dismissal of plaintiffs' first claim. Under this analysis, the court would consider Alston's affidavit and deposition testimony that plaintiffs failed to provide the information Alston requested and needed to schedule items valued over $50,000. Defendant maintains that, since it gave plaintiffs this option, which would have covered their ring fully, any negligence by defendant did not cause plaintiffs' damages. Cosmos, Queens Ltd. v. Matthias Saechang Im Agency, 74 A.D.3d at 683-84. See, e.g., New York City Hous. Auth. v. Merchants Mut. Ins. Co. , 44 A.D.3d 540, 541-42 (1st Dep't 2007),. Marc Kritzer's deposition testimony, however, that Alston never asked specifically for the ring's appraisal and in any event possessed the appraisal, so that defendant was in a position itself to schedule the ring, would counter this defense. Ashkin Aff. Ex. K at 318; Voss v. Netherlands Ins. Co., 22 N.Y.3d at 736-37; American Bldg. Supply Corp. v. Petrocelli Group, Inc., 19 N.Y.3d at 736-37; Hersch v. DeWitt Stern Group, Inc., 43 A.D.3d at 644-45.
B. Plaintiffs State a Claim for Negligent Misrepresentation.
A claim for negligent misrepresentation must allege (1) a special relationship imposing a duty on defendant to convey accurate information to plaintiffs, (2) that defendant conveyed inaccurate information to plaintiffs, and (3) that plaintiffs reasonably relied on that information. Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 180 (2011); North Star Constr. Corp. v. MTA Capital Constr. Co., 120 A.D.3d 1066, 1069 (1st Dep't 2014); MatlinPatterson ATA Holdings LLC v. Federal Express Corp., 87 A.D.3d 836, 840 (1st Dep't 2011). The complaint alleges that defendant, as plaintiffs' insurance broker, assured plaintiffs that the Fireman's Fund policy provided blanket coverage of $150,000 for their valuable items without the need to schedule the items and failed to advise plaintiffs of the $50,000 limit on unscheduled items and the need to schedule plaintiffs' ring. Ashkin Aff. Ex. A ¶¶ 24, 40, 44. In reliance on this misinformation, plaintiffs never scheduled the ring valued at well more than $50,000, even though they had done so under their prior policy. Id. ¶¶ 47-48. These allegations, as well as related allegations set forth above, supporting defendant's awareness of plaintiffs' insurance objective and their reliance on defendant's expertise, see Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d at 180-81; MatlinPatterson ATA Holdings LLC v. Federal Express Corp., 87 A.D.3d at 841, state a claim for negligent misrepresentation. North Star Constr. Corp. v. MTA Capital Constr. Co., 120 A.D.3d at 1070. See Structure Tone Inc. v. Niland, 112 A.D.3d 505, 506 (1st Dep't 2012).
Again, even if the parties' allegations are analyzed under C.P.L.R. § 3212(b), plaintiffs dispute Alston's attestations, however substantiated and credible, that she repeatedly advised Marc Kritzer of plaintiffs' need to schedule their ring to cover it above the limit on unscheduled items, and plaintiffs failed to heed her instructions and avoid their eventual loss. See, e.g., Dickson v. City of New York, 43 A.D.3d 809, 809 (1st Dep't 2007); Transcare N.Y., Inc. v. Finkelstein, Levine & Gittlesohn & Partners, 23 A.D.3d 250, 251 (1st Dep't 2005). The credibility of this evidence, versus Marc Kritzer's contrary attestations that Alston never instructed plaintiffs to provide an appraisal for the ring, is a question for the factfinder at trial and not for the court, even upon a motion for summary judgment. C.P.L.R. § 3212(b); Nania v. Metropolitan Tr. Auth., 124 A.D.3d 552, 552 (1st Dep't 2015); Clindinin v. New York City Hous. Auth., 117 A.D.3d 628, 629 (1st Dep't 2014); Best v. 1482 Montgomery Estates, LLC, 114 A.D.3d 555, 556 (1st Dep't 2014); Binetti v. Infante, 38 A.D.3d 210, 210 (1st Dep't 2007).
C. Plaintiffs Fail to State a Claim for Breach of Any Contract.
Plaintiffs may recover against their insurance broker for its breach of a contract if the policy defendant broker procured did not cover a loss that defendant contracted to provide, and the insurance carrier refused to cover the loss. American Bldg. Supply Corp. v. Petrocelli Group, Inc., 19 N.Y.3d at 735; Bruckmann, Rosser, Sherrill & Co., L.P. v Marsh USA, Inc., 65 A.D.3d 865, 866 (1st Dep't 2009). The complaint alleges only that defendant agreed to procure plaintiffs an insurance policy that adequately and effectively covered plaintiffs' property, through a blanket coverage of up to $150,000 for valuable jewelry. Ashkin Aff. Ex. A ¶¶ 52-53. Plaintiffs do not claim defendant failed to procure the agreed upon blanket coverage of up to $150,000, see Bruckmann, Rosser, Sherrill & Co., L.P. v Marsh USA, Inc., 65 A.D.3d at 866, as defendant did procure just such coverage.
While plaintiffs claim that defendant failed to advise them of the $50,000 limit of coverage per unscheduled item, they nowhere allege that they requested, and defendant contracted, but failed to procure a policy without a $50,000 coverage limit per unscheduled item. Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d at 181-82; Bruckmann, Rosser, Sherrill & Co., L.P. v Marsh USA, Inc., 65 A.D.3d at 866. Nor do plaintiffs allege that defendant agreed to procure a policy without a requirement to schedule items separately. Plaintiffs therefore fail to allege any contractual terms that defendant breached so as to sustain their claim for breach of contract. C.P.L.R. § 3211(a)(7).
IV. DISPOSITION
For all the reasons explained above, the court grants defendant's motion only to the extent of dismissing the complaint's third claim, based on its failure to state a claim for breach of a contract. Id. The court otherwise denies defendant's motion, whether for dismissal of the complaint's first and second claims under C.P.L.R. § 3211(a)(1), (2), (5), or (8) or for summary judgment dismissing those claims under C.P.L.R. § 3212(b). The parties shall appear for a pretrial conference March 30, 2015, at 9:30 a.m., in Part 46. 22 N.Y.C.R.R. § 202.26. DATED: February 6, 2015
/s/_________
LUCY BILLINGS, J.S.C.