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

22 A.D.3d 741, 805 N.Y.S.2d 396

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 2005
• Status: Published

Opinion

In an action, inter alia, to recover damages for negligence in procuring insurance coverage, the plaintiff appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated March 17, 2004, which granted those branches of the separate motions of the defendants Fillmore Agency, Inc., and Kerwick & Curran, Inc., of New Jersey which were for summary judgment dismissing the complaint insofar as asserted against them.

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

In support of those branches of their separate motions which were for summary judgment dismissing the complaint insofar as asserted against them, the defendants Fillmore Agency, Inc., and Kerwick & Curran, Inc., of New Jersey demonstrated their entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The movants provided evidence showing that even if they negligently failed to procure the particular insurance coverage that the plaintiff had requested and, thus, were required to pay the plaintiff what it would have received from its insurance company had the requested insurance policy been issued (see American Ref-Fuel Co. of Hempstead v Resource Recycling, 281 AD2d 574 [2001]; Andriaccio v Borg & Borg, 198 AD2d 253 [1993]), they would not have to pay the plaintiff any damages, as the plaintiffs insurable interest under that policy would have been extinguished (see Melino v National Grange Mut. Ins. Co., 213 AD2d 86 [1995]; Sportsmen’s Park v New York Prop. Ins. Underwriting Assn., 97 AD2d 893 [1983], affd 63 NY2d 998 [1984]; Moke Realty Corp. v Whitestone Sav. & Loan Assn., 82 Misc 2d 396 [1975], affd 51 AD2d 1005 [1976], affd 41 NY2d 954 [1977]; Coppotelli v Insurance Co. of N. Am., 631 F2d 146 [1980]). Since, in response, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]), the court correctly granted those branches of the motions which were for summary judgment dismissing the complaint insofar as asserted against the respondents.

The plaintiff’s remaining contentions are without merit. Schmidt, J.P., Santucci, Luciano and Covello, JJ., concur.