730 J & J LLC v. Fillmore Agency, Inc.

303 A.D.2d 486, 755 N.Y.S.2d 887, 2003 N.Y. App. Div. LEXIS 2384

Opinion

—In an action, inter alia, to recover damages for negligence in procuring insurance coverage, the defendant Kerwick & Curran, Inc., of New Jersey appeals from an order of the Supreme Court, Kings County (Held, J.), dated March 12, 2002, which denied its motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it and the cross claim asserted against it by the defendant Fillmore Agency, Inc.

Ordered that the order is affirmed, with one bill of costs.

A motion to dismiss pursuant to CPLR 3211 (a) (1) “may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002], citing Leon v Martinez, 84 NY2d 83, 88 [1994]; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]). The Supreme Court properly found that the appellant failed to submit sufficient evidence conclusively demonstrating that it was not in a relationship “so close as to approach that of privity” with the plaintiff so as to defeat liability to the plaintiff for any negligent failure to provide it with the insurance coverage it requested (Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 423 [1989], quoting Ultra-mares Corp. v Touche, 255 NY 170, 182-183 [1931]; see Credit Alliance Corp. v Andersen & Co., 65 NY2d 536, 551 [1985]; Lyons v Medical Malpractice Ins. Assn., 286 AD2d 711, 712 [2001]; International Fid. Ins. Co. v Gaco W., 229 AD2d 471 [1996]).

In light of our determination, we need not reach the parties’ remaining contentions. Santucci, J.P., Friedmann, Luciano and Rivera, JJ., concur.