Mott v. New York Property Insurance Underwriting Ass'n

209 A.D.2d 981, 619 N.Y.S.2d 986

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1994
• Status: Published

Opinion

— Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion of defendant Walter C. Taylor Agency, Inc., to dismiss the action based upon plaintiffs’ failure to prove a prima facie case (see, CPLR 4401). "[Although it is well established in this State that a broker may be held liable, based upon either breach of contract or tort, for neglect in failing to procure insurance, in order to support such a recovery it must be demonstrated that the coverage sought could have been procured prior to the fire” (Rodriguez v Investors Ins. Co., 201 AD2d 355, 356, citing American Motorists Ins. Co. v Salvatore, 102 AD2d 342, 346; see also, Hjemdahl-Monsen v Faulkner, 204 AD2d 516; Kinns v Schulz, 131 AD2d 957, 959; MacDonald v Carpenter & Pelton, 31 AD2d 952, 954). Plaintiffs presented no proof to establish the availability of fire insurance coverage for their premises.

We have reviewed plaintiffs’ remaining contentions and conclude that they are without merit. (Appeal from Judgment of Supreme Court, Monroe County, Stander, J.—Insurance Law.) Present—Denman, P. J., Green, Balio, Wesley and Callahan, JJ.