Opinion
Decided March 22, 2001.
Appeal, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered September 16, 1999, which (1) reversed, on the law, so much of an order of the Supreme Court (Jerry Crispino, J.), entered in Bronx County, as granted third-party defendant Essential Coverage Corp.'s motion for summary judgment dismissing this particular third-party complaint as time-barred, and (2) reinstated the third-party complaint. The Appellate Division certified the following question: "Was the order of this Court, which reversed the order of the Supreme Court, properly made?"
Plaintiff laborer commenced an action against the construction manager, among others, for personal injuries arising out of a work-related accident. The construction manager commenced third-party actions against the insurance agent/broker and insurer seeking contribution and/or indemnification under a policy issued to a subcontractor on the ground that it was an additional named insured.
Supreme Court granted the agent/broker's motion for summary judgment dismissing the third-party complaint on statute of limitations grounds, determining that the three-year statute of limitations governing malpractice actions governed the claims against the agent/broker.
The Appellate Division reversed, concluding that the applicable statute of limitations is six years based upon the contractual relationship between the parties in the third-party action.
Submitted by Debra Miller Krebs, for second third-party appellant.
Submitted by Frank Gulino, for second third-party respondent.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
MEMORANDUM:
The order of the Appellate Division should be modified, without costs, in accordance with this memorandum, and as so modified, affirmed. The certified question should be answered in the negative.
We agree with the Appellate Division that the alleged misfeasance of insurance agents and brokers toward their clients is not "malpractice" within CPLR 214(6) (see, Chase Scientific Research, Inc. v. The NIA Group, Inc. [decided today]). That a breach of contract claim against insurance agents and brokers would be governed by the six-year statute (CPLR 213) does not, however, resolve this appeal because Herbert, in its third-party complaint, has not asserted a breach of contract claim against Essential. Herbert's third-party complaint charges "negligence and/or errors or omissions," and "negligence, material misrepresentation or fraud." Fraud (CPLR 213) and misrepresentation (CPLR 213) have six-year limitations periods; negligence has a three-year limitations period (CPLR 214). Applying these sections rather than CPLR 214(6), there should be a factual determination as to whether the action was timely commenced. Issues regarding contribution and indemnification, argued in Supreme Court, are not raised before us.
On review of submissions pursuant to section 500.4 of the Rules, order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed, and certified question answered in the negative, in a memorandum.