Opinion
17–603133
05-24-2018
AB OIL SERVICES LTD. d/b/a AB Environmental, Able Environmental Services Inc. and Fairway Environmental LLC, Plaintiffs, v. TCE INSURANCE SERVICES, INC. and Anthony DeFede, Defendants.
PLTFS' ATTORNEY: KATE & DRUCKER, ESQS., 1325 FRANKLIN AVE, SUITE 225, GARDEN CITY, NY 11530 DEFTS' ATTORNEY: TRIVELLA & FORTE, 1311 MAMARONECK AVENUE, WHITE PLAINS, NY 10605
PLTFS' ATTORNEY: KATE & DRUCKER, ESQS., 1325 FRANKLIN AVE, SUITE 225, GARDEN CITY, NY 11530
DEFTS' ATTORNEY: TRIVELLA & FORTE, 1311 MAMARONECK AVENUE, WHITE PLAINS, NY 10605
Sanford Neil Berland, J.
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by plaintiffs, dated January 9, 2018, and supporting papers; (2) Memorandum of Law in Opposition by defendants, dated January 30, 2018; (3) Memorandum in Reply, dated February 1, 2018; it is
ORDERED that Mot. Seq. # 002 made by plaintiffs seeking to reargue defendants' prior motion to dismiss is denied; and it is further
ORDERED that above entitled action shall be marked as "disposed."
Plaintiffs AB Oil Services Ltd. d/b/a AB Environmental ("AB"), Able Environmental Services Inc. and Fairway Environmental LLC brought this action seeking both monetary and declaratory relief. In a decision and order dated December 11, 2017, the court (Asher, J.) granted the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(7). Plaintiffs now move, pursuant to CPLR 2221, for leave to reargue that motion and, upon the granting of such leave, for the court to deny the motion. In the alternative, they seek permission to amend their complaint. For the reasons that follow, the motion is denied.
According to the verified complaint, plaintiffs are in the business of "environmental remediation." Plaintiffs alleged that the defendants—TCE Insurance Services, Inc. ("TCE") and Anthony DeFede ("DeFede")—were their insurance brokers for a single year, from July 1, 2015 through June 30, 2016 (the "2015–2016 policy year"), and procured an insurance policy for them, underwritten by the Starr Companies ("Starr"), that was in effect during that period of time. Plaintiffs further alleged that some number of months after the Starr policy had been procured, one of the plaintiffs, AB, had the opportunity to bid, through a "pilot program," on natural gas main leak repair work for Con Edison. Plaintiffs had not previously been engaged in work of that kind, and, according to the verified complaint, before they executed the Con Edison purchase agreement and formally entered into the pilot program, they informed the defendants of the details of the work they would be doing for Con Edison, "along with the insurance requirements," and then provided defendants with a copy of their draft Con Edison purchase agreement. They alleged that the defendants then informed them "that they had all the necessary endorsements for the Con Edison work" and, between then and AB's "mobilization" in late November 2015, provided the certificates of insurance required by the Con Edison purchase agreement. They further alleged that "based on the [defendants'] assurances, AB executed the [Con Edison] purchase agreement on October 13, 2015 to formally enter into the said pilot program cont[r]act with Con Edison."
In an affidavit sworn to June 22, 2017 and submitted in opposition to the defendants' underlying motion to dismiss, John Vitale, an employee of the plaintiffs who claimed full and personal knowledge of the facts and circumstances to which he was attesting, provided a somewhat different account of the sequence of events, and the scope of plaintiffs' inquiry:
2. When we originally purchased insurance through the defendants, we were not engaged in natural gas main leak repair work for Con Edison or any other entity. We received an insurance policy from the defendants which, naturally, did not cover some work.
3. Thereafter, we proposed and negotiated a purchase agreement for the Con Edison work. Myself and other employees of the Plaintiffs spoke to defendant Anthony DeFede regarding the newly issued Con Edison agreement and the insurance requirements. We forwarded to him a copy of the agreement and relied upon him to procure the insurance required to fulfill the conditions....Affidavit of John Vitale (sworn to June 22, 2017), paragraphs 2–3. Mr. Vitale went on to aver that Mr. DeFede told him that plaintiffs' then current insurance coverage was "fine" and provided a certificate of insurance, a copy of which was annexed to his affidavit, inter alia naming Con Edison "as an additional insured with respects [sic] to General Liability policy where required by contract."
According to the verified complaint, the three-year Con Edison pilot program consisted of three consecutive one-year terms, annually renewable at Con Edison's sole option and without any provision for AB to renegotiate pricing. In June of 2016, AB submitted to Con Edison a bid for a "permanent" three-year contract for gas main leak repair work. Plaintiffs alleged that AB's June 2016 bid "was based, in part, upon the price of insurance" and "was binding upon AB if accepted by Con Edison ...." It was also in June 2016, according to the verified complaint, that the defendants "proposed new insurance policies" for the period July 2016 through June 2017. Those new polices, again according to the verified complaint, were to cost more than the expiring policy—$397,377 versus the $380,951.70 plaintiffs alleged they had paid for their 2015–2016 policy—and plaintiffs, "determined to seek other quotes" and selected a "substitute broker." Plaintiffs further alleged that "based upon information from the substitute broker, they contacted a representative from Starr" and were told that Starr "had no knowledge" of the Con Edison contract or that AB was undertaking gas main leak repair work. Apparently following plaintiffs' contact with the Starr representative, Starr informed the substitute broker, by email, that Starr had not and would not insure AB's gas main leak repair work and that the $397,377 quote was "disavowed." The verified complaint went on to allege that "[a]s a result" of Starr's disavowal of its earlier quote, plaintiffs were "obligated to place their insurance through yet another broker, Vanguard, at significantly greater cost, both overall and for the alleged premium for AB's gas main repair work. The remedies sought by plaintiffs included an award of money damages for the alleged difference in value between the coverage they had and the coverage they needed for the 2015–2016 policy period; the additional cost of the coverage they ultimately obtained for their natural gas work and the corresponding diminution in the net proceeds of their contract with Con Edison; a refund of the commissions that were paid to defendants for "placing insurance that did not exist" ; and a declaratory judgment that the defendants would be required to defend and indemnify plaintiffs for any claims made or actions brought against them arising from repair work performed during the time that plaintiffs alleged that they were not insured for such work.
The verified complaint used the phrase "during the renewal process," but logically, Starr's alleged email must have been sent after plaintiffs' "contact" with the Starr representative as, according to the verified complaint, the representative had stated that Starr had no knowledge up to that time that AB was performing gas main leak repair work.
Although the verified complaint requests such relief, there is no allegation that defendants charged, or were paid, a commission for any insurance policy that was not placed for plaintiffs by defendants.
In a decision and order dated December 11, 2017, the court (Asher, J.) granted the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(7). Plaintiffs did not allege in their verified complaint or in the papers they submitted in opposition to the defendants' dismissal motion (and do not allege now) that any claims have been asserted against them stemming from gas main leak repair work performed by AB during the term of the Starr policy. Thus, Justice Asher dismissed as premature plaintiff's first, third and fourth causes of action, each of which was based upon the alleged deficiencies in the coverage afforded by the 2015–2016 Starr policy, and so much of the second cause of action as was also based upon those alleged deficiencies (See December 11, 2017 Decision and Order at 3–4, citing, inter alia, e.g. , Staten Island Hosp. v. All. Brokerage Corp., 137 AD2d 674, 676 [2d Dept 1988] (declaratory judgment action against insurance brokers premature where insured had made no claim against policy; "the future event, in this case rejection of SIH's insurance claim, is beyond the control of the parties and may never occur"); Bonded Waterproofing Co. Services, Inc. v. Anderson–Bernard Agency, Inc. , 86 AD3d 527 [2d Dept 2011] ; PFM Packaging Mach. Corp. v. ZMY Food Packing, Inc. , 131 AD3d 1029, 1030 [2d Dept 2015] ).
Nor have plaintiffs alleged—then or now—that they purchased any additional insurance coverage—whether on their own initiative or under compulsion from Con Edison—to supplement the coverage afforded to them or to Con Edison by the 2015–2016 Starr policy.
With respect to the verified complaint's sole remaining claim—the portion of the second cause of action that sought damages for defendants' alleged negligent misrepresentation of the amount plaintiffs' would be required to pay for insurance policies that included coverage for the gas main repair work AB was hoping to perform during the July 2016 through June 2017 policy period—Justice Asher, citing the Court of Appeals' decision in J.A.O. Acquisition Corp. v. Stavitsky , 8 NY3d 144 [2007], held that the allegations of the verified complaint failed to satisfy two of the three elements that a claimant must allege in order to state, and ultimately must prove in order to sustain, a claim for negligent misrepresentation. As the Court of Appeals articulated those elements in Stavitsky :
Neither the original verified complaint nor any of plaintiffs' current or prior submissions, including their proposed amended complaint, provide any indication of whether AB's alleged pilot program contract with Con Edison was renewed after the initial annual term, whether AB's alleged June 2016 "permanent" three-year contract bid resulted in any contract between AB and Con Edison, whether the latter bid and any resulting contract was intended to, or did, supersede the pilot program contract, or the extent of the gas main leak repair AB performed for Con Edison, whether in the July 2015 through June 2016 Starr policy period or thereafter.
A claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information ....
J.A.O. Acquisition Corp. v. Stavitsky , supra 8 NY3d at 148. Accepting as true all of plaintiffs allegations, and "affording plaintiffs every favorable inference," Justice Asher held that the facts alleged by plaintiffs both failed to establish that "the requisite duty to plaintiffs existed when defendants provided the 2016–2017 Quote" and made clear "that plaintiffs did not act in reasonable reliance on the 2016–2017 Quote."
In their current motion, plaintiffs do not appear seriously to take issue with the court's determination that their claims for a declaratory judgment and monetary relief to remedy the alleged insufficiency of the insurance coverage that was procured for them for the July 1, 2015 through June 30, 2016 policy period, when the Starr policy was in effect and purportedly did not cover AB's gas main leak repair work for Con Edison, are premature. In any event, plaintiffs do not contend that Justice Asher overlooked any allegedly uninsured claim that has been asserted against them or any retrospective insurance coverage that they have been compelled to purchase to shore up the asserted deficiencies in the insurance coverage afforded them by the Starr policy during the 2015–2016 policy period. Rather, plaintiffs seek to bootstrap the defendants' alleged failure, first, to provide them with an insurance policy that afforded them the full coverage they had requested during the 2015–2016 policy period—as a result of which, according to their allegations, the gas main leak repair work AB performed for Con Edison during that period "may have been uninsured"—and, subsequently, to include coverage for AB's gas main leak repair work in the Starr policies that were offered to plaintiffs (but not purchased by them) for the succeeding policy period—into an actionable tortious misrepresentation not so much of the scope of coverage afforded by those policies, but, more specifically, of the actual cost of the insurance plaintiffs required in order both to meet Con Edison's contractual requirements and to provide coverage for AB's gas main leak repair work. To that end, plaintiffs contend that the original and revised "pricing" for the bid that AB submitted to Con Edison in June of 2016, for a permanent three-year contract for gas main leak repair work, was based, in part upon the cost of insurance in effect at that time (for the period July 1, 2015 to June 30, 2016) knowing that the new pricing proposed by TCE represented an approximate $16,000 increase above the current year, and that this price would fully cover the Con Edison work, as TCE had stated in November, 2015. Once submitted, the pricing became binding upon AB.
In their proposed amended complaint, at paragraph 19, plaintiffs omit the phrase "in part."
Vitale Affidavit, January 8, 2018, at paragraph 2. From this, plaintiffs urge that defendants should be held liable not only for the cost of any uninsured claims that may be asserted against them as a result of the alleged coverage deficiencies in the 2015–2016 Starr policy, but also for the added costs they claim they incurred in subsequent policy years for insurance policies that provided coverage for AB's gas main leak repair work and for the alleged diminution in the "net proceeds" that AB received, or the net losses it incurred, under its contract with Con Edison because of those of those added costs.
The law, however, is clear that absent a special relationship, or specific instructions, the duty of an insurance broker is to place the insurance coverage its customer has requested within a reasonable period of time or to advise the customer that it is unable to do so, and if it fails to perform that duty, it can be held accountable in negligence or contract. As the Court of Appeals has written:
"[I]nsurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage" ( Murphy v Kuhn , 90 NY2d 266, 270 [1997] ). To set forth a case for negligence or breach of contract against an insurance broker, a plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc. , 7 NY3d 152, 155 [2006] ). "A general request for coverage will not satisfy the requirement of a specific request for a certain type of coverage" ( id. at 158 ).
Am. Bldg. Supply Corp. v. Petrocelli Grp., Inc., 19 NY3d 730, 735, 979 N.E.2d 1181 [2012] ; see also Bruckmann, Rosser, Sherrill & Co., L.P. v. Marsh USA, Inc. , 65 AD3d 865, 867, 885 N.Y.S.2d 276 [1STDept 2009] ("absent a special relationship, a claim for breach of fiduciary duty does not lie" against an insurance broker), citing People v Liberty Mut. Ins. Co. , 52 AD3d 378, 380 [1st Dept 2008] ; Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency , 297 AD2d 430, 431–432 [3d Dept 2002]. The law is also clear, as the Second Department has stated, that damages—including lost profits and other alleged consequential damages—generally are recoverable
where the loss or injury is ‘the natural and proximate consequences, and not the remote consequences, of a wrongful act’ and ‘this rule is applicable to actions for breach of contract as well as to actions based upon a tort’ ( 36 N.Y.Jur.2d, Damages, § 12 at p. 28). ‘Whether one violates a contractual obligation or a duty imposed by law, the theory of the law is that compensation shall be made for the injury directly and proximately caused by the breach of the contract or duty" ( 36 N.Y.Jur.2d, Damages, § 8 at p. 22). In actions to recover damages for breach of contract, ‘[i]n order to impose on the defaulting party a further liability than for damages [which] naturally and directly [flow from the breach], i.e., in the ordinary course of things, arising from a breach of contract, such unusual or extraordinary damages must have been brought within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting’ ( Kenford Co. v. County of Erie , 73 NY2d 312, 319, 540 N.Y.S.2d 1, 537 N.E.2d 176 ; quoting, Chapman v. Fargo , 223 NY 32, 36, 119 N.E. 76 ).
Rose Lee Mfg., Inc. v. Chem. Bank , 186 AD2d 548, 551, 588 N.Y.S.2d 408, 410—11 [2d Dept 1992].
Although plaintiffs have endeavored to fine tune their allegations, with both a further affidavit of Mr. Vitale and a proposed amended complaint aimed at "clarify[ing] the timeline" in order to demonstrate, by temporal sequence, that they relied upon the "defendants' insurance pricing" in submitting AB's bids to Con Edison, there continues to be no allegation of a "special or privity-like relationship" between plaintiffs and defendants sufficient to support a negligent misrepresentation claim ( A.O. Acquisition Corp. v. Stavitsky , supra 8 NY3d at 148 ), or that "such unusual or extraordinary damages" as they were seeking had "been brought within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting" ( Kenford Co. v. County of Erie , supra, 73 NY2d at 319 ). Their attempt, in place of such allegations, to present a sequence of events that, at least temporally, comports with the inference they would have the court draw, is insufficient; post hoc ergo propter hoc is, at best, a logical fallacy and, in and of itself, is no more probative of duty, reasonable reliance or the scope of what was within the parties' "contemplation" than it is of causation. (See generally Cassano v. Hagstrom, 5 NY2d 643, 645, [1959], aff'g 5 AD2d 1003 [2d Dept 1958].)
It should be noted that the two submissions are not entirely in harmony. They do, however, seem to allege that although AB first submitted its bid to Con Edison for a permanent three-year gas main repair contract in early June 2016 without the benefit of any quote from the defendants for Starr coverage for the upcoming policy year, by June 22, 2016—when, in response to Con Edison's request, AB submitted "revised pricing" for that bid—plaintiffs had not only received, and AB factored in, the quote from defendants for a new Starr policy for the period July 2016 through June 2017, but plaintiffs had already begun to seek out other quotes for insurance coverage for that period. However, according to both Mr. Vitale and the proposed amended complaint, it was not until June 24, 2016, two days after AB had submitted its revised bid, that Starr emailed plaintiffs or their (unnamed) substitute broker to state that Starr would not insure the gas main repair work and that the $397,377 quote was "disavowed." (Interestingly, neither Mr. Vitale's affidavit nor the proposed amended complaint provides the dates when the substitute broker allegedly first learned that there was an issue with the scope of coverage afforded by the Starr policy, when that broker alerted plaintiffs that there was such an alleged issue and when plaintiffs, based upon that information, contacted a representative from Starr and learned that Starr allegedly was unaware of AB's gas main leak repair work and of its Con Edison contract, all of which is alleged in both the original verified complaint and in the proposed amended complaint and appear to be if not the triggering events that led to the June 24, 2016 Starr email, then at least antecedent to it.)
"A motion for leave to reargue ‘shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining a prior motion, but shall not include any matters of fact not offered in the prior motion’ " ( Mazinov v Rella , 79 AD3d 979, 980 [2d Dept 2010], quoting CPLR 2221[d][2] ). "A motion for leave to reargue ‘is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented’ " (Id. ). "Motions for reargument are addressed to the sound discretion of the court... and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some [other] reason mistakenly arrived at its earlier decision" ( Weiss v Bretton Woods Condominium II , 151 AD3d 905, 905 [2d Dept 2017] ). For all of the reasons stated above, it is evident that plaintiffs have failed to make the requisite showing. It is also evident that the allegations of the proposed amended complaint do not overcome the deficiencies of the original complaint and that, therefore, leave to amend ought not to be granted. (See, e.g., In re Rokeach , 101 AD3d 1022, 1025 [2d Dept 2012] ; Staskowski v. Nassau Community Coll. , 53 AD3d 611, 612 [2d Dept 2008].)
Accordingly, plaintiffs' motion is denied.