Opinion
02-11-2015
Gail PURCELL, et al., respondents, v. M.L. BRUENN CO., INC., et al., appellants.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Thomas A. Leghorn, Joseph L. Francoeur, Nancy Quinn Koba, and Alice Leslie Brodie of counsel), for appellants. Paul J. Campson, New York, N.Y., for respondents.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Thomas A. Leghorn, Joseph L. Francoeur, Nancy Quinn Koba, and Alice Leslie Brodie of counsel), for appellants.
Paul J. Campson, New York, N.Y., for respondents.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
Opinion In an action, inter alia, to recover damages for negligence, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Hubert, J.), dated March 18, 2014, as, upon converting that branch of their motion which was pursuant to CPLR 3211(a) to dismiss the second cause of action into one for summary judgment dismissing that cause of action, denied that branch of their motion.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' converted motion which was for summary judgment dismissing the second cause of action is granted.
The complaint in this action alleged, among other things, that the plaintiff Gail Purcell was injured in an automobile accident. The plaintiffs alleged that they gave notice of the accident to the defendants, who, it is undisputed, were agents of the nonparty Progressive Insurance Company (hereinafter Progressive), which had issued the plaintiffs' insurance policy. As relevant here, the second cause of action alleged that the defendants were negligent in failing to give timely notice of the accident to Progressive and that, but for this failure, the plaintiffs would have been able to recover under the policy.
The defendants moved, inter alia, to dismiss the second cause of action pursuant to CPLR 3211(a). Upon converting that branch of the defendants' motion into one for summary judgment dismissing that cause of action, the Supreme Court denied that branch of the defendants' motion.
“The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty constituted a proximate cause of the injury” (Roberson v. Wyckoff Hgts. Med. Ctr., 123 A.D.3d 791, 792 ; see Turcotte v. Fell, 68 N.Y.2d 432, 437, 510 N.Y.S.2d 49, 502 N.E.2d 964 ). Accordingly, “[i]n order that a negligent actor shall be liable for another's harm, it is necessary not only that the actor's conduct be negligent toward the other, but also that the negligence of the actor be a legal cause of the other's harm” (Restatement [Second] of Torts § 430 ; see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 314–315, 434 N.Y.S.2d 166, 414 N.E.2d 666 ).
Here, the insurance policy provided that notice to an agent of Progressive would satisfy the notice provisions of the policy. Since, under the terms of the policy, notice to the defendants satisfied the plaintiffs' duty to provide notice of the accident to Progressive, the defendants demonstrated that any failure to communicate notice of the accident to Progressive did not alter the plaintiffs' rights under the terms of the policy or otherwise affect their ability to recover in accordance with its terms (see Insurance Law § 3420[a] [3] ; Waldron v. New York Cent. Mut. Fire Ins. Co., 88 A.D.3d 1053, 1055, 930 N.Y.S.2d 687 ; cf. Tully Constr. Co., Inc. v. Marsh USA, Inc., 65 A.D.3d 627, 629, 884 N.Y.S.2d 165 ). Accordingly, the defendants established, prima facie, that the negligent conduct alleged in the complaint was not a proximate cause of the alleged damages (see generally Roberson v. Wyckoff Hgts. Med. Ctr., 123 A.D.3d 791 ; Parklex Assoc. v. Flemming Zulack Williamson Zauderer, LLP, 118 A.D.3d 968, 970, 989 N.Y.S.2d 60 ; Grippe v. Wolf, 65 A.D.3d 1283, 1284, 885 N.Y.S.2d 616 ; Fowler v. Sammut, 259 A.D.2d 516, 517, 686 N.Y.S.2d 109 ).
In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs failed to articulate any way in which the defendants' alleged failure to communicate notice to Progressive prejudiced their rights under the policy (cf. Parklex Assoc. v. Flemming Zulack Williamson Zauderer, LLP, 118 A.D.3d at 970, 989 N.Y.S.2d 60 ). Accordingly, the Supreme Court should have granted that branch of the defendants' converted motion which was for summary judgment dismissing the second cause of action.