Radfordv.Peerless Ins. Co.

Supreme Court, Appellate Division, Fourth Department, New York.Mar 23, 2012
941 N.Y.S.2d 430 (N.Y. App. Div. 2012)

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2012-03-23

Sarah RADFORD, doing business as Dewitt Cellular, Plaintiff–Appellant, v. PEERLESS INSURANCE COMPANY, et al., DEFENDANTS,andLadd's Agency, Inc., Defendant–Respondent.

Gustave J. Detraglia, Jr., Utica, for Plaintiff–Appellant. Keidel, Weldon & Cunningham, LLP, Syracuse (Lori A. Eaton of Counsel), for Defendant–Respondent.


Gustave J. Detraglia, Jr., Utica, for Plaintiff–Appellant. Keidel, Weldon & Cunningham, LLP, Syracuse (Lori A. Eaton of Counsel), for Defendant–Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.

MEMORANDUM:

In this action seeking damages for, inter alia, breach of contract, plaintiff contends that Supreme Court erred in granting the motion of defendant Ladd's Agency, Inc. (Ladd) for summary judgment dismissing the amended complaint against it. We reject that contention.

The amended complaint contains claims against Ladd under theories of negligence, breach of contract, negligent misrepresentation and breach of fiduciary duty, arising from Ladd's alleged failure to procure certain insurance coverage on plaintiff's behalf. Addressing first the negligent misrepresentation claim, it is well settled that “liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified” ( Kimmell v. Schaefer, 89 N.Y.2d 257, 263, 652 N.Y.S.2d 715, 675 N.E.2d 450; see Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17 N.Y.3d 565, 578, 934 N.Y.S.2d 43, 958 N.E.2d 77; Murphy v. Kuhn, 90 N.Y.2d 266, 270, 660 N.Y.S.2d 371, 682 N.E.2d 972). Here, plaintiff does not contend that Ladd possessed unique or specialized expertise. We conclude that the court properly granted Ladd's motion with respect to the negligent misrepresentation and breach of fiduciary duty claims because Ladd met its initial burden by establishing that it did not have a special relationship with plaintiff and that it did not owe a fiduciary duty to plaintiff ( see Murphy, 90 N.Y.2d at 270–272, 660 N.Y.S.2d 371, 682 N.E.2d 972; Sawyer v. Rutecki, 92 A.D.3d 1237, 1237–38, 937 N.Y.S.2d 811; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718), and plaintiff failed to raise a triable issue of fact in opposition ( see Obomsawin v. Bailey, Haskell & Lalonde Agency, Inc., 85 A.D.3d 1566, 1567, 924 N.Y.S.2d 878, lv. denied 17 N.Y.3d 710, 2011 WL 4356516; see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

The court also properly granted those parts of the motion with respect to the negligence and breach of contract claims against Ladd because there was no special relationship between plaintiff and Ladd ( see Hoffend & Sons, Inc. v. Rose & Kiernan, Inc., 7 N.Y.3d 152, 158, 818 N.Y.S.2d 798, 851 N.E.2d 1149, affg. 19 A.D.3d 1056, 796 N.Y.S.2d 790; Sawyer, 92 A.D.3d at 1237–38; Obomsawin, 85 A.D.3d at 1567, 924 N.Y.S.2d 878). Furthermore, plaintiff did not make a specific request for coverage beyond that which Ladd procured for her ( see Obomsawin, 85 A.D.3d at 1567, 924 N.Y.S.2d 878). Contrary to plaintiff's contention, her “general request for [additional] coverage will not satisfy the requirement of a specific request for a certain type of coverage” ( Hoffend & Sons, Inc., 7 N.Y.3d at 158, 818 N.Y.S.2d 798, 851 N.E.2d 1149). Finally, those claims are barred by plaintiff's receipt of the amended insurance policy prior to the loss ( see Gui's Lbr. & Home Ctr., Inc. v. Pennsylvania Lumbermens Mut. Ins. Co., 55 A.D.3d 1389, 1390, 864 N.Y.S.2d 818; Hoffend & Sons, Inc., 19 A.D.3d at 1057–1058, 796 N.Y.S.2d 790; cf. Page One Auto Sales, Inc. v. Brown & Brown of N.Y., 83 A.D.3d 1482, 1483, 921 N.Y.S.2d 749).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.