Opinion
March 6, 1984
Appeal from the Supreme Court, Onondaga County, Miller, J.
Present — Dillon, P.J., Hancock, Jr., Denman, Green and Moule, JJ.
Judgment unanimously affirmed, with costs. Memorandum: Defendant's counterclaim was properly dismissed. The theory on which defendant sought to recover against Brooks, its insurance agent, was that it had requested Brooks to obtain insurance coverage for rental replacement of a Mack tractor, that it relied upon Brooks to procure such coverage, that it was advised that the coverage had been obtained but that in fact Brooks failed to obtain such coverage. In order to prevail on its claim for misrepresentation, S.W.S. was required to prove "representation of a material existing fact, falsity, scienter, deception and injury" ( Channel Master Corp. v Aluminium Ltd. Sales, 4 N.Y.2d 403, 407; Meese v Miller, 79 A.D.2d 237, 240-241) and to do so by clear and convincing evidence ( Simcuski v Saeli, 44 N.Y.2d 442, 452). There was a total lack of proof of a false representation as S.W.S. failed to show that it had filed a claim with its insurance carrier for which a disclaimer was issued. Nor would the result be different if we read the pleadings as stating claims in either breach of contract or negligence. In order for defendant to recover under any theory, it would have had to prove that the tractor was not covered under its equipment floater policy. That it failed to do. Additionally, although defendant's president testified that he thought such coverage was in effect, there was no proof that he had requested it or that Brooks had represented that it had been obtained.