Opinion
No. 18441 2012.
2013-04-25
Daniel R. GUARINO and Angela T. Guarino, Plaintiffs, v. JSM BROKERAGE, INC. and Progressive Casualty Insurance Company, Defendants.
Here, plaintiffs' allegations regarding the information they supplied to JSM as to their assets and needs, the requests they made to JSM regarding adequate insurance coverage, and the promise by JSM to find the most suitable coverage for them that would protect them in case of any lawsuit, are sufficient to state a claim that JSM failed to discharge the duty to obtain appropriate insurance coverage limits imposed by its agreement with plaintiffs. ( See Bonded Waterproofing Servs., Inc. v. Anderson–Bernard Agency, Inc., 86 AD3d 527, 529 [2011];NWE Corp. v. Atomic Risk Mgt. of NY, Inc., 25 AD3d 349 [2006];Kyes, 278 A.D.2d at 737–738.) Since it is alleged that JSM was acting as the agent of Progressive, the complaint states a cause of action against Progressive. ( See Bedessee Imports, Inc., 45 AD3d at 795;cf. Bonded Waterproofing Servs., Inc., 86 AD3d at 530–531.) While the insured bears the burden of proving the alleged specific undertaking by the broker (Murphy, 90 N.Y.2d at 273), such burden need not be sustained to defeat a CPLR 3211(a)(7) dismissal motion. ( See EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005];Farber v. Breslin, 47 AD3d 873 [2008].)