Opinion
September 28, 1970
In an action inter alia for reformation of an insurance policy and for recovery of money, defendant the New Zealand Insurance Company, Limited appeals from an order of the Supreme Court, Suffolk County, entered May 21, 1969, which denied its motion for summary judgment. Order reversed, on the law, with $10 costs and disbursements; motion granted; and action severed so as to permit it to proceed against defendant Klar Moshman separately. The action rests upon the allegation that defendant Klar Moshman, an insurance broker, acted as an agent for defendant the New Zealand Insurance Company, Limited in obtaining insurance coverage for plaintiff's jewelry store and that in so doing it made a mistake which is the basis for reformation. However, the insurance policy contains a clause which explicitly states that any party other than the assured who procures the policy shall be deemed to be the agent of the assured. Such a clause is valid and binding upon the parties to the policy ( Allen v. German Amer. Ins. Co., 123 N.Y. 6; Chase v. Hamilton Ins. Co., 20 N.Y. 52). Plaintiff's allegation is affirmatively negated by the insurance policy. Under such circumstances, the motion for summary judgment should have been granted. Rabin, Acting P.J., Hopkins, Munder, Martuscello and Benjamin, JJ., concur.