Opinion
609509/2019
01-10-2020
Edyta REGNOWSKI, Plaintiff, v. NARRAGANSETT BAY INSURANCE COMPANY, C.A.M. Associates, Inc. and Risk Placement Services, Defendants.
EDMOND C. CHAKMAKIAN, PC, Attorneys for Plaintiff, 200 Motor Parkway, Suite A3, Hauppauge, NY 11788 L'ABBATE, BALKAN, COLAVITA & CONTINI, LLP, Attorneys for Defendant C.A.M. Associates, Inc., 1001 Franklin Avenue, Garden City, NY 11530 WHITE AND WILLIAMS, LLP, Attorneys for Defendant Risk Placement Services, Inc., 7 Times Square, Suite 2900, New York, New York 10036 SHEARER, P.C., Attorney for Defendant Narragansett Bay Insurance Company, 90 Forest Avenue Locust Valley, NY 11560
EDMOND C. CHAKMAKIAN, PC, Attorneys for Plaintiff, 200 Motor Parkway, Suite A3, Hauppauge, NY 11788
L'ABBATE, BALKAN, COLAVITA & CONTINI, LLP, Attorneys for Defendant C.A.M. Associates, Inc., 1001 Franklin Avenue, Garden City, NY 11530
WHITE AND WILLIAMS, LLP, Attorneys for Defendant Risk Placement Services, Inc., 7 Times Square, Suite 2900, New York, New York 10036
SHEARER, P.C., Attorney for Defendant Narragansett Bay Insurance Company, 90 Forest Avenue Locust Valley, NY 11560
Robert F. Quinlan, J.
Upon the following papers read on this motion to dismiss; defendant Risk Placement Services, Inc. Notice of Motion/Order to Show Cause and supporting papers (Doc #5-13)(#001); and defendant C.A.M. Associates, Inc. Notice of Motion/Order to Show Cause and supporting papers (Doc #15-22)(#002); Answering Affidavits and supporting papers _____; Replying Affidavits and supporting papers ____; Other ____; (and after hearing counsel in support and opposed to the motion); it is,
ORDERED that defendants Risk Placement Services, Inc. and C.A.M. Associates, Inc.'s motions to dismiss (Seq. #001 and #002) are consolidated for the purpose of this decision and order; and it is further
ORDERED that defendant Risk Placement Services, Inc.'s unopposed motion for an order dismissing the complaint pursuant to CPLR 3211(a)(5) and (7) is granted; and it is further
ORDERED that defendant C.A.M. Associates, Inc.'s unopposed motion for an order dismissing the complaint pursuant to CPLR 3211(a)(5) and (7) is granted; and it is further
ORDERED that the Differentiated Case Management Order of January 6, 2020 entered into between plaintiff Edyta Regnowski and defendant Narragansett Bay Insurance Company is modified by deleting any provisions relating to defendants C.A.M. Associates, Inc. and Risk Placement Services, Inc., including the holding of depositions, but otherwise remains in full force and effect.
Plaintiff Edyta Regnowski ("plaintiff") commenced this action against defendants Narragansett Bay Insurance Company ("Narragansett"), C.A.M. Associates, Inc. ("C.A.M.") and Risk Placement Services, Inc. ("RPS") for declaratory relief pursuant to CPLR 3001 by filing a summons and complaint on May 17, 2019 (NYSCEF Doc. #1). The action stems from claims arising from personal injuries allegedly sustained by plaintiff as a result of a boating accident on August 8, 2015, when a boat allegedly operated by non-party Joseph M. Balarezo and owned by Boatbound, Inc. allegedly came in contact with plaintiff resulting in the amputation of her lower extremity. (Plaintiff's personal injury action concerning that incident is pending before another Justice of this court; Index # 18389-2015 [Baisley, J] ). By her complaint plaintiff describes C.A.M. as an insurance agent and RPS as a broker involved in the placement of renter's insurance issued by Narragansett to non-party Balarezo. Plaintiff asserts that defendants C.A.M. and RPS "had a duty to procure insurance for Balarezo" which would have covered non-party Balarezo for losses such as that suffered by plaintiff, and that C.A.M. and RPS "breached this duty in failing to properly research defendant, Narragansett Bay's company and policy." Narragansett denied coverage to non-party Balarezo by letter dated September 18, 2015. (On November 12, 2019 Joseph M. Balarezo filed an action similar to the present action; Joseph M. Balarezo v Narragansett Bay Insurance Company and C.A.M. Associates, Inc, Index # 622331-2019, which is before this court).
Rather than filing answers in the present action, counsel for defendants C.A.M. and RPS filed the instant pre-answer motions seeking dismissal claiming that the action was filed after the applicable statute of limitations had expired ( CPLR 321 [a] [5] ) and that the complaint failed to state a cause of action ( CPLR 3211 [a] [7] ). Defendant Narragansett filed an answer on July 29, 2019, but did not join in defendants' C.A.M. and RPS motions, nor file any responses thereto.
COMPLAINT DISMISSED AS TIME BARRED
On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a defendant must establish, prima facie , that the time within which to sue has expired. Once that showing has been made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, that an exception to the limitations period is applicable, or that the plaintiff actually commenced the action within the applicable limitations period" ( Tsafatinos v Law Off. of Sanford F. Young, P.C. , 121 AD3d 969 [2d Dept 2014] [internal citation omitted]; see Quinn v McCabe, Collins, McGeough & Fowler, LLP , 138 AD3d 1085 [2d Dept 2016] ; Bullfrog, LLC v Nolan , 102 AD3d 719 [2d Dept 2013] ).
Whether the act of purported negligence which commenced the statute of limitations was when defendants allegedly failed to procure non-party Balarezo the "proper insurance" on or about July 30, 2015, as argued by defendant C.A.M. without citation, or when defendant Narragansett denied non-party Balarezo's request for coverage and defense by the letter dated September 18, 2015, as argued by defendant RPS citing Bonded Waterproofing Services, Inc. v Anderson-Bernard Agency, Inc. , 86 AD3d 527 (2d Dept 2011), defendants have made the necessary prima facie showing that the action, filed in NYSCEF on February 17, 2019 (NYSCEF Doc. #1), is barred by the statute of limitations. The filing was well after the three years statute of limitations set by CPLR § 214 (4). As plaintiff has failed oppose the motion and raise any questions of fact as to whether the statute of limitations has been tolled, or show that an exception to the period is applicable, plaintiff's action against these defendants must be dismissed as untimely.
COMPLAINT FAILS TO STATE A CAUSE OF ACTION
In determining whether to dismiss a complaint pursuant to CPLR 3211 (a) (7) the court must assume as true the facts plead, give every favorable inference to the allegations, and determine only whether the alleged facts fit any cognizable legal theory ( Dickinson v Igoni , 76 AD3d 943 [2d Dept 2010] ; Tsutsui v Barasch , 67 AD3d 896 [2d Dept 2009] ). A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) ( Sokol v Leader , 74 AD3d 1180 [2d Dept 2010] ) when such material is submitted and considered, and the motion is not converted into one for summary judgment, the question becomes whether plaintiff has a cause of action, not whether one has been stated (see Jannetti v Whelan , 97 AD3d 797 [2d Dept 2012] ). A motion to dismiss pursuant to CPLR 3211(a)(7) must be denied unless it has been shown that a material fact as claimed by the plaintiff is not a fact at all, and unless it can be said that no significant dispute exists regarding it (Sokol v Leader , supra quoting Guggenheimer v Ginzburg , 43 NY2d 268 [1977] ; Board of Managers of 285 Driggs Ave. Condo. v 285 Driggs Ave., LLC , 173 AD3d 821 [2d Dept 2019] ). Here, as to both defendants, it has been shown that the material fact of privity of contract between defendants and plaintiff did not exist, and that there was no duty owed to plaintiff by defendants which has been breached.
The essential elements of a breach of contract cause of action are ‘the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach’ " ( Canzona v Atanasio , 118 AD3d 837 [2d Dept 2014], quoting Dee v Rakower , 112 AD3d 204 [2d Dept 2013] ).
Upon the papers submitted, defendant RPS established plaintiff lacks standing to assert a claim against RPS for any purported duty to provide insurance to non-party Balarezo, as there is no privity between plaintiff and defendant RPS. As a general rule, an insurance broker has a common-law duty to provide requested coverage within a reasonable time and may be held liable for negligence or breach of contract when a client establishes that a specific request was made for coverage that was not provided in the policy ( Finch v Steve Cardell Agency , 136 AD3d 1198 [2d Dept 2016] [citation omitted]; see Voss v Netherlands Ins. Co. , 22 NY3d 728 [2014] ). On the record before the court, it is undisputed that plaintiff was not a client of RPS, therefore plaintiff lacks standing to assert a claim upon any alleged failure to provide coverage to non-party Balarezo. As plaintiff has failed to submit any opposition to the motion to refute defendant RPS' presentation, defendant RPS's motion to dismiss pursuant to CPLR 3211 (a) (7) must be granted.
In support of its similar motion, defendant C.A.M. established it is an insurance brokerage firm which never had any contact or dealings with plaintiff, plaintiff was never an insurance client of C.A.M. and C.A.M. never acted as an insurance broker for plaintiff. Applying the same reasoning, defendant C.A.M. established plaintiff lacks standing to assert a claim for any alleged failure to provide coverage. As plaintiff has failed to submit any opposition to the motion, defendant C.A.M.'s motion to dismiss pursuant to CPLR 3211 (a) (7) must be granted.
DCM ORDER MODIFIED
As defendant Narragansett answered, but did not file motions similar to the prevailing defendants herein, plaintiff filed a request for a preliminary conference on November 19, 2019, and a conference was held in the courts' Differentiated Case Management Part ("DCM") on January 6, 2020. Only counsel for plaintiff and defendant Narragansett appeared and entered in to the DCM preliminary conference stipulation and order. As the court has dismissed the action as to defendants C.A.M and RPS, any provisions of the DCM order applicable to those defendants, including depositions, are hereby deleted. Otherwise the DCM order remains in full force and effect.
This constitutes the decision and order of the court.