Opinion
2015-04-07
Wendy KAUFMAN, Plaintiff–Appellant, v. BWD GROUP LLC, Defendant–Respondent.
Hirschel Law Firm, P.C., Garden City (Daniel Hirschel of counsel), for appellant. Catalano Gallardo & Petropoulos, LLP, Jericho (Gary Petropoulos of counsel), for respondent.
Hirschel Law Firm, P.C., Garden City (Daniel Hirschel of counsel), for appellant. Catalano Gallardo & Petropoulos, LLP, Jericho (Gary Petropoulos of counsel), for respondent.
FRIEDMAN, J.P., ACOSTA, MOSKOWITZ, KAPNICK, JJ.
Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered February 19, 2014, to the extent appealed from as limited by the briefs, dismissing plaintiff's complaint pursuant to an order, same court and Justice, entered on or about November 14, 2013, which granted defendant's motion for summary judgment, unanimously affirmed, without costs. Appeal from the aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
In this action for breach of contract and negligence, plaintiff insured alleges that defendant insurance brokerage company failed to procure sufficient insurance coverage to fully compensate her for her loss of personal property after a fire damaged her Massachusetts home in June 2009.
Defendant made a prima facie showing of its entitlement to judgment as a matter of law by submitting evidence that plaintiff never specifically requested that it obtain a certain level of contents coverage for the home and that there was no special relationship between the parties requiring it to obtain appropriate coverage ( see 46th St. Dev., LLC v. Marsh USA, Inc., 100 A.D.3d 455, 953 N.Y.S.2d 500 [1st Dept.2012] ). The record demonstrates that plaintiff did nothing to change the contents coverage in the six months before the fire, even though defendant had informed her in January 2009 of the amount of the coverage and that it was at its lowest available limit ( see Murphy v. Kuhn, 90 N.Y.2d 266, 271, 660 N.Y.S.2d 371, 682 N.E.2d 972 [1997]; see also Nicholas J. Masterpol, Inc. v. Travelers Ins. Cos., 273 A.D.2d 817, 818, 711 N.Y.S.2d 88 [4th Dept.2000] ).
In opposition, plaintiff failed to raise a triable issue of fact. The record does not support plaintiff's contention that she specifically asked defendant to procure sufficient contents coverage to fully compensate her in the event of a covered loss ( see Hoffend & Sons, Inc. v. Rose & Kiernan, Inc., 7 N.Y.3d 152, 157–158, 818 N.Y.S.2d 798, 851 N.E.2d 1149 [2006] ). That plaintiff's husband, who was not an insured, believed that the policy provided full compensation is of no moment, given that defendant's employee had informed plaintiff in January 2009 of the amount of coverage. Further, it is undisputed that plaintiff never paid for an evaluation of the home's contents and that defendant never agreed to conduct such an evaluation ( compare Stevens v. Hickey–Finn & Co., 261 A.D.2d 300, 301, 691 N.Y.S.2d 411 [1st Dept.1999] [issue of fact raised where broker, in response to the plaintiff's request, undertook to estimate the replacement value of the property] ). Moreover, there is no evidence that defendant told plaintiff that she would be completely compensated for any damaged personal property should an insurable loss occur ( see generally Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 735, 985 N.Y.S.2d 448, 8 N.E.3d 823 [2014] ).
Although plaintiff had been purchasing insurance from defendant for over 20 years, this alone does not raise an issue of fact as to a special relationship, especially since the evidence shows that plaintiff chose the coverage amounts and did not rely on defendant for any advice as to the appropriate amounts ( see Hoffend, 7 N.Y.3d at 158, 818 N.Y.S.2d 798, 851 N.E.2d 1149; see also Murphy, 90 N.Y.2d at 271–273, 660 N.Y.S.2d 371, 682 N.E.2d 972).