Opinion
September 27, 1985
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Dillon, P.J., Doerr, Boomer, Green and Pine, JJ.
Judgment unanimously affirmed, without costs. Memorandum: Defendant Rabin Scheff appeals from a judgment, following a nonjury trial, which awarded plaintiff $16,212.36 plus interest as reimbursement for cargo and collision damages sustained by plaintiff. Rabin Scheff contends that a contract of insurance was created between plaintiff and defendant Royal Globe Insurance Company obligating Royal Globe to indemnify plaintiff for its losses and in the event Rabin Scheff is liable to plaintiff it should be indemnified by Royal Globe. We disagree.
Rabin Scheff had no authority to bind Royal Globe except by the terms of an agency agreement which required written notice to Royal Globe of the issuance of any binders. Rabin Scheff, having failed to provide such written notice, could not bind Royal Globe to provide plaintiff with the necessary coverage. Moreover, even if Royal Globe was liable to the plaintiff, Royal Globe would have an absolute right of indemnity against Rabin Scheff because liability for plaintiff's losses was caused solely by Scheff's negligence in failing to request Royal Globe to provide the coverage desired by the plaintiff and by misrepresenting to plaintiff that coverage was obtained when in fact it was not (see, Brown v Poritzky, 30 N.Y.2d 289, 292; American Motorists Ins. Co. v Salvatore, 102 A.D.2d 342, 346; Riedman Agency v Meaott Constr. Corp., 90 A.D.2d 963, 964, appeal dismissed 58 N.Y.2d 824). Under these facts, Royal Globe need not indemnify Rabin Scheff because a negligent agent has no claim against his principal (see, Sutton v Cobb, 50 A.D.2d 995).