Point O'Woods Ass'n v. Those Underwriters at Lloyd's

288 A.D.2d 78, 733 N.Y.S.2d 146, 2001 N.Y. App. Div. LEXIS 10992

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 2001
• Status: Published

Opinions

—Order, Supreme Court, New York County (Paula Omansky, J.), entered on or about July 11, 2000, which granted defendant insurance broker’s motion for summary judgment dismissing defendant insurance carrier’s cross claims for negligent misrepresentation and constructive fraud, and denied the carrier’s cross motion for summary judgment on such cross claims, affirmed, without costs.

The subject cross claims, which are based upon omissions of prior losses made by the broker in preparing plaintiff insured’s application for excess flood insurance with the carrier, were properly dismissed for lack of evidence tending to show conduct by the broker linking it to the carrier in a manner creating a relationship between them approaching privity. To show the necessary linking conduct, the carrier relies on a phrase contained in a promotional flyer that the broker received from an entity described by the carrier as a “wholesale broker,” and which identifies the carrier as the underwriter of the insurance being promoted. More is needed to show the functional equivalent of privity than that a reliant party was actually known (see, Parrott v Coopers & Lybrand, 95 NY2d 479, 485, citing Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 425, citing Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536, 553, n 11; see also, Security Pac. Bus. Credit v Peat Marwick Main & Co., 79 NY2d 695, 705). Nor does it appear that the carrier’s alleged reliance on the broker’s professionalism was justifiable, or that there is some other identifiable source of a special duty of care owed by the broker to the carrier (see, Murphy v Kuhn, 90 NY2d 266, 270-271, 273). Concur — Williams, J. P., Mazzarelli, Andrias and Ellerin, JJ.