Opinion
July 21, 1994
Appeal from the Supreme Court, Dutchess County (Beisner, J.).
On May 26, 1989, plaintiff Robert Hankin became the assignee of a $120,000 mortgage given contemporaneously to plaintiff Resource Financing, Inc. At the closing, the mortgagor and owner of the mortgaged property, FGMM Enterprises, Inc., arranged, at plaintiffs' insistence, to have its counsel call the office of defendant Anne M. Vogel, an insurance agent and broker, in order to confirm that there was insurance coverage in place to protect the interests of both Hankin and Resource. Vogel allegedly agreed to issue a binder for coverage and the loan transaction closed.
Thereafter, inquiries as to different insurance coverage for the property resulted in the acquisition of a policy for FGMM through defendant National Casualty Company that became effective on October 2, 1989. On December 6, 1989, before plaintiffs had a chance to learn that the old coverage had lapsed or review the new policy to make sure that the proper payees were named, the insured premises were completely destroyed by fire. While the policy issued by National did not indicate the interest of any mortgagee as a loss payee, National nevertheless agreed that Resource was the proper loss payee. However, National rejected any claim by Hankin as assignee because he was not named as a mortgagee.
In their lawsuit against the various defendants involved, plaintiffs alleged principally that Vogel was negligent in failing to make sure that insurance coverage protected plaintiffs' interests as mortgagee and assignee. Supreme Court declined to grant summary judgment to Vogel based on her argument that she did not owe any duty to plaintiffs as a matter of law. We agree with this conclusion. In light of letters in the record that were sent by Vogel to Resource in June 1989 indicating to it that Resource and its successors and assigns were appropriately covered, we find that issues of fact were raised with respect to Vogel's duty to plaintiffs and her awareness of the appropriate designations to be used in policies to ensure that loss payees are protected. Unlike other situations where no duty has been found between mortgagees and brokers, here plaintiffs, inter alia, specifically insisted upon proper insurance coverage and the closing of FGMM's loan went forward based upon Vogel's affirmative assurance that it would be provided.
Cardona, P.J., Crew III, Casey, Weiss and Peters, JJ., concur. Ordered that the order is affirmed, with costs.