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QUESTIONS OF FACT ABOUT WHETHER THE INSURED MADE A SPECIFIC REQUEST TO DEFENDANT INSURANCE-BROKER FOR COVERAGE AND WHETHER THERE WAS A SPECIAL RELATIONSHIP BETWEEN THE INSURED AND THE BROKER; THE BREACH OF CONTRACT CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; THE NEGLIGENT MISREPRESENTATION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the defendant insurance-broker’s motion for summary judgment on the breach of contract cause of action was properly denied, and the motion for summary judgment on the negligent misrepresentation cause of action should have been denied. The issues are whether the insured made a specific request for coverage and whether there was a special relationship between the insured and defendant broker:

“An insurance agent or broker has a common-law duty to obtain requested coverage for a client within a reasonable amount of time, or to inform the client of the inability to do so … . Generally, “‘[t]o set forth a case for negligence or breach of contract against an insurance broker, a plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy'” … . “Thus, the duty is defined by the nature of the client’s request” … . However, “[w]here a special relationship develops between the broker and client, . . . the broker may be liable, even in the absence of a specific request, for failing to advise or direct the client to obtain additional coverage” … .

… [T]he defendant insurance broker failed to meet its initial burden of tendering sufficient evidence to demonstrate the absence of triable issues of fact with respect to whether the plaintiff client made a specific request for coverage which was not obtained … . … [T]riable issues of fact exist as to whether a specific interaction took place between the plaintiff and the defendant regarding a question of coverage related to the plaintiff’s renovation work on the insured property that could give rise to a special relationship between the parties … . Copacabana Realty, LLC v A.J. Benet, Inc., 2021 NY Slip Op 05944, Second Dept 11-3-21

 

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