Opinion
2002-1444 K C.
Decided October 15, 2003.
Appeal by defendant New York State Business Group, Inc. from so much of an order of the Civil Court, Kings County (D. Kurtz, J.), entered on August 16, 2002, as denied that branch of its motion for summary judgment without prejudice to renewal after completion of discovery.
Order insofar as appealed from unanimously reversed without costs and motion by defendant New York Business Group, Inc. for summary judgment granted.
PRESENT: ARONIN, J.P., PATTERSON and GOLIA, JJ.
Contrary to plaintiffs' contentions, there is no evidence establishing that the appealing defendant was negligent in procuring insurance for Mr. Wilson and his family. It is evident from the record that the appealing defendant could have obtained family coverage for plaintiff retroactively if plaintiff paid the insurance premium for such coverage. However, it is undisputed that Mr. Wilson did not pay the premium for family coverage. Consequently, the appealing defendant cannot be held liable for failing to procure insurance and, on the record presented, liability cannot be premised on any other theory. Thus, the motion for summary judgment should have been granted.