Opinion
2002-05328
Argued February 14, 2003.
March 10, 2003.
In an action, inter alia, to recover damages for negligence in procuring insurance coverage, the defendant Kerwick Curran, Inc., of New Jersey appeals from an order of the Supreme Court, Kings County (Held, J.), dated March 12, 2002, which denied its motion pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it and the cross claim asserted against it by the defendant Fillmore Agency, Inc.
Babchik Young, LLP, White Plains, N.Y. (Norman R. Ferren of counsel), for appellant.
Weg Myers, New York, N.Y. (Joshua L. Mallin of counsel), for plaintiff-respondent.
Lustig Brown, LLP, New York, N.Y. (Ellen Nimaroff of counsel), for defendant-respondent.
Before: FRED T. SANTUCCI, J.P., WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with one bill of costs.
A motion to dismiss pursuant to CPLR 3211(a)(1) "may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, citing Leon v. Martinez, 84 N.Y.2d 83, 88; see 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152). The Supreme Court properly found that the appellant failed to submit sufficient evidence conclusively demonstrating that it was not in a relationship "so close as to approach that of privity" with the plaintiff so as to defeat liability to the plaintiff for any negligent failure to provide it with the insurance coverage it requested (Ossining Union Free School Dist. v. Anderson LaRocca Anderson, 73 N.Y.2d 417, 423, quoting Ultramares Corp. v. Louche, 255 N.Y. 170, 182-183; see Credit Alliance Corp. v. Andersen Co., 65 N.Y.2d 536, 551; Lyons v. Medical Malpractice Ins. Assn., 286 A.D.2d 711, 712; International Fid. Ins. Co. v. Gaco W., 229 A.D.2d 471).
In light of our determination, we need not reach the parties' remaining contentions.
SANTUCCI, J.P., FRIEDMANN, LUCIANO and RIVERA, JJ., concur.