Opinion
November 16, 1994
Appeal from the Supreme Court, Monroe County, Stander, J.
Present — Denman, P.J., Green, Balio, Wesley and Callahan, JJ.
Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion of defendant Walter C. Taylor Agency, Inc., to dismiss the action based upon plaintiffs' failure to prove a prima facie case (see, CPLR 4401). "[A]lthough it is well established in this State that a broker may be held liable, based upon either breach of contract or tort, for neglect in failing to procure insurance, in order to support such a recovery it must be demonstrated that the coverage sought could have been procured prior to the fire" (Rodriguez v Investors Ins. Co., 201 A.D.2d 355, 356, citing American Motorists Ins. Co. v. Salvatore, 102 A.D.2d 342, 346; see also, Hjemdahl-Monsen v. Faulkner, 204 A.D.2d 516; Kinns v. Schulz, 131 A.D.2d 957, 959; MacDonald v. Carpenter Pelton, 31 A.D.2d 952, 954). Plaintiffs presented no proof to establish the availability of fire insurance coverage for their premises.
We have reviewed plaintiffs' remaining contentions and conclude that they are without merit.