Saktaganov v 20 Arion LLC 2024 NY Slip Op 34496(U)
December 23, 2024
Supreme Court, Kings County Docket Number: Index No. 523138/19 Judge: Ingrid Joseph
Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
FILED: KINGS COUNTY CLERK 12/24/2024 03:55 PM INDEX NO. 523138/2019 NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 12/24/2024
IAS Term,
At an lAS Term, Part
Part 83, of
of the Supreme
Supreme Court
Court
of the of the State
State of
of New
New York,
York, held
held in and for the
County of County of Kings,
Kings, at the Courthouse, Courthouse, at 360 ~d
Adams Street, Adams Street, :erooklyn,_ New New York, .9-~
York, on the 9-~
day of day J)e,c~W, 202"
of j)e.c,.~LeI', 202!#:
PRESENT: HON. PRESENT: HON. INGRID
INGRID JOSEPH, J.S.C.
JOSEPH, J.S.C.
SUPREME SUPREME COURT THE STATE COURT OF THE STATE OF
NEW YORK NEW YORK COUNTY
COUNTY OF KINGS
KINGS
-----------------------------------------------------------------------X -----------------------------------------------------------------------)( SERKIBA SERKIBAYY SAKT AGANOV and SAKTAGANOVand
ZAMIRA ZAMIRA AIDA GARAYEV
AIDAGARA YEV A, DECISION AND DECISION AND ORDER
ORDER
Plaintiffs, Plaintiffs,
-against- -against- Index No.:
Index No.: 523138/19
523138/19
20 ARION LLC, DOMOVOY,
ARION LLC, LLC, ALMA DOMOVOY, LLC, ALMA DESIGN DESIGN INC.,
INC., Motion Seq. 4 Motion
V.A.N. CONSTRUCTION
and V.A.N. CONSTRUCTION CORP., CORP., Defendants. Defendants.
-----------------------------------------------------------------------X -----------------------------------------------------------------------)( DOMOVOY DOMOVOY LLC,
LLC,
Third- Party Plaintiff, Third- Party Plaintiff,
-against- -against-
ALMA ALMA DESIGN INC.,
DESIGN INC.,
Third-Party Defendant. Third-Party Defendant.
-----------------------------------------------------------------------X -----------------------------------------------------------------------)( 20 ARION LLC,
ARION LLC,
Second Third-Party Second Third-Party Plaintiff, Plaintiff,
-against- -against-
ALMA ALMA DESIGN
DESIGN INC.
INC. and
and ASPIS
ASPIS RISK SERVICES CORP, RISK SERVICES CORP,
Second Second Third-Party Defendants.
Third-Party Defendants.
-----------------------------------------------------------------------X -----------------------------------------------------------------------)( The The following
folIowing e-filed
e-filed papers
papers read herein:
read herein: NYSEF Doc NYSEF Doc Nos.:
Nos.:
Notice of Notice Motion/Order to Show of Motion/Order Show Cause/ Cause/
Petition/Cross Petition/Cross Motion
Motion and
and
Affidavits Affidavits (Affirmations)
(Affirmations) Annexed
Annexed _ _ _ _ _ _ _ _ __ 110-117 110-117
Opposing Opposing Affidavits (Affirmations) _ _ _ _ _ _ _ _ __ Affidavits (Affirmations) 148-149 148-149
Affidavits/ Affirmations in Reply Affidavits/ Affirmations Reply _ _ _ _ _ _ _ _ __ 151-153 151-153
Upon Upon the foregoing
foregoing papers, second third-party papers, second third-party defendant defendant Aspis
Aspis Risk
Risk Services
Services Corp.
Corp. moves
moves for an
order, pursuant to CPLR order, pursuant CPLR 3211 (a) (1) and (7), dismissing dismissing defendant/second defendant/second third-party third-party plaintiff
plaintiff 20 Arion
Arion
LLC's LLC's amended
amended second
second third-party complaint insofar third-party complaint insofar as asserted asserted against
against it (Motion
(Motion Seq. 4).
This This action,
action, premised upon allegations premised upon allegations of of common-law
common-law negligence,
negligence, violations
violations of
of Labor
Labor Law SS
Law §§
200, 240, 241 and
and seeking damages associated seeking damages associated with loss of of consortium,
consortium, was
was commenced
commenced by the filing
filing of
of a
summons summons and complaint
complaint on October 2019 (NYSCEF October 23, 2019 (NYSCEF Doc Doc No. 1). their complaint, I). In their complaint, the plaintiffs plaintiffs
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allege that, on August allege August 7, 2019, 2019, the plaintiff Serikbay the plaintiff Serikbay Saktaganov was working Saktaganov was working on the roof roof at the premises
premises
located located at 20 Arion
Arion Place,
Place, Brooklyn, New York, Brooklyn, New when he fell, sustaining York, when sustaining injury injury (NYSCEF
(NYSCEF Doc No. I, at
Doc NO.1,
~~ 30, 31, 33, 36, 40). The ,i,i premises at issue The premises issue was was owned
owned by 20 Arion LLC (20 Arion), Arion LLC which hired Arion), which hired
defendant/third-party plaintiff Domovoy defendant/third-party plaintiff LLC (Domovoy)
Domovoy LLC (Domovoy) as a general (id. at ,i,i contractor (id.
general contractor ~~ 38, 52;
NYSCEF Doc NYSCEF No. 49).
Doc No. Domovoy, in tum, 49). Domovoy, tum, subcontracted with defendant subcontracted with V.A.N. Construction defendant V.A.N. Construction Corp Corp
(VAN) (VAN) (NYSCEF Doc No.
(NYSCEF Doc No. 49).
49). VAN
VAN thereafter
thereafter subcontracted
subcontracted with defendant defendant Alma Design Inc. (Alma)
Alma Design (Alma)
(NYSCEF (NYSCEF Doc No. 49). On July Doc No. July 23, 2020, 2020, the plaintiffs
plaintiffs moved
moved to amend the summons amend the summons and complaint, complaint,
inter VAN and Alma inter alia, to add VAN Alma as party party defendants
defendants (mot.
(mot. seq. no. 2) (NYSCEF (NYSCEF Doc Nos. 43-51
Doc Nos. 43-51),), which
which
was granted was granted without
without opposition
opposition by order
order dated November 12, 2020 dated November 2020 (NYSCEF (NYSCEF Doc No. 61
Doc No. 61).). Thereafter, Thereafter,
Domovoy, Domovoy, 20 Arion,
Arion, and VAN
VAN filed
filed answers
answers asserting affirmative defenses asserting affirmative defenses and cross-claims cross-claims (NYSCEF
(NYSCEF
Nos. 68, 69, 73).
Doc Nos.
Domovoy subsequently Domovoy subsequently filed a third-party third-party summons
summons and complaint
complaint naming
naming Alma
Alma as third-party
third-party
defendant, defendant, asserting causes of asserting causes of action action sounding
sounding in common indemnity, contribution, common law indemnity, contribution, contractual contractual
indemnity, breach of indemnity, and breach of contract contract for failure
failure to procure
procure insurance
insurance (NYSCEF Doc Nos.
(NYSCEF Doc Nos. 3-4,
3-4, 33).
Arion commenced 20 Arion commenced a second second third-party
third-party action
action against
against Alma,
Alma, asserting
asserting causes of action causes of action
sounding sounding in common
common law indemnity,
indemnity, contribution,
contribution, contractual contractual indemnity, breach of indemnity, and breach of contract contract for
failure failure to procure
procure insurance,
insurance, and
and as against
against Aspis
Aspis Risk
Risk Services
Services Corp.
Corp. (Aspis),
(Aspis), asserting
asserting claims
claims sounding
sounding
in fraud
fraud and negligent
negligent misrepresentation misrepresentation (NYSCEF Doc Nos.
(NYSCEF Doc Nos. 22-24,
22-24, 93). As against
against Apsis,
Apsis, the amended
amended
second second third-party
third-party complaint
complaint alleges
alleges that
that 20 Arion retained Aspis Arion retained Aspis as its insurance insurance broker
broker to obtain
obtain liability
liability
insurance for the subject insurance subject premises, premises, and
and that certificate of that the certificate liability insurance, of liability insurance, annexed annexed to the complaint, complaint,
"clearly "clearly and unambiguously unambiguously represented represented to 20 Arion
Arion that
that liability
liability insurance
insurance had been
been obtained
obtained for the
Subject Subject Property,
Property, and was in full force and was force and effect effect at the time
time of
of the Alleged Injury" (NYSCEF Alleged Injury" (NYSCEF Doc Doc No. 93
at ,i,i
~~ 14-16, 28). 20 Arion
Arion alleges
alleges that,
that, "[ n]otwithstanding the issuance "[n]otwithstanding issuance of of the Certificate
Certificate of
of Liability
Liability
Insurance, Insurance, at all times
times relevant
relevant hereto, policy of hereto, no policy of liability liability insurance
insurance had been issued had been issued that
that covered
covered the
Subject Property" (id. at ,i Subject Property" ~ 29).
29). The
The amended
amended second
second third-party
third-party complaint
complaint further
further alleges
alleges that
that "Aspis
"Aspis
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intended intended to deceive
deceive 20 Arion"
Arion" by the issuance
issuance and delivery
delivery of the Certificate of the Certificate of
of Liability Insurance, and Liability Insurance,
that that "20 Arion
Arion reasonably relied on the representations reasonably relied representations in the Certificate" ( id. at ,i Certificate" (id ~ 30, 31 ).
30,31).
In support
support of
of its cause
cause of
of action
action sounding negligence, 20 Arion sounding in negligence, Arion alleges that, "[ u]pon alleges that, u]pon the request request
made by 20 Arion made Arion to Aspis, Aspis, Aspis
Aspis had a duty provide 20 Arion duty to provide with a true, Arion with true, correct correct and accurate
accurate
Certificate of Certificate Liability Insurance of Liability Insurance which which accurately
accurately represented
represented the
the policy
policy of liability insurance of liability insurance that that was
was in
effect effect covering
covering the Subject
Subject Premises
Premises at the time
time of Alleged Injury."
of the Alleged (id at ,i Injury." (id. As a result ~ 34). As result of Aspis's of Aspis's
alleged alleged failure
failure to do so, 20 Arion Arion asserts that "Aspis asserts that breached this "Aspis breached this duty duty of
of care"
care" and "[a]s
"[a]s a result
result of
of this
negligence, 20 Arion negligence, Arion did not have a policy not have policy of liability insurance of liability insurance in effect effect at the time
time of
of the Alleged
Alleged
Injury" (id. at ,r,r Injury" 35-36).
~~ 35-36).
The The certificate
certificate of liability insurance of liability insurance ("Certificate")
("Certificate") annexed the amended annexed to the amended second third-party second third-party
complaint complaint lists Aspis
Aspis as the producer,
producer, and Domovoy
Domovoy as the insured
insured under
under the subject policy numbers subject policy numbers (id.
(id
at 13). 20 Arion
Arion is named
named as a certificate
certificate holder,
holder, and the certificate indicates in its description certificate indicates description that "[i]n that "[i]n
accordance with [sic] the accordance with the tenns terms and conditions
conditions of policy, the certificate of the policy, certificate holder holder is added
added as an
additional additional insured pol icy" (id.).
insured to the policy" The Certificate (id). The fu1iher includes Certificate further includes the following following disclaimer:
disclaimer:
"This Ce1iificate is issued "This Certificate issued as a matter matter of information only of information only and confers confers no
rights upon the certificate rights upon certificate holder.
holder. This
This certificate
certificate does not affirmatively does not affinnatively
or negatively amend, extend negatively amend, extend or alter alter the coverage
coverage afforded
afforded by the
policies below. policies below. This
This Certificate
Certificate of lnsurance does of Insurance not constitute does not constitute a
contract between the issuing contract between issuing insurer(s), insurer(s), authorized representative or authorized representative producer, producer, and the
the Certificate Holder." (id.)
Certificate Holder." (id)
On October
October 27, 2022, Aspis moved, 2022, Aspis moved, pursuant pursuant to CPLR
CPLR 3211 (a) (1) and (7), to dismiss dismiss the
amended amended second
second third-party
third-party complaint insofar as asserted complaint insofar asserted against (NYSCEF Doc against it (NYSCEF Doc Nos.
Nos. 110-117).
110-117). In
support support of
of its motion, Aspis includes motion, Aspis includes the affidavit affidavit of Anna Kalonaros, of Anna Kalonaros, the President President of Aspis, who
of Aspis, who avers
avers
that "Vasil that "Vasil Tortskiuk
Tortskiuk ...
... from
from V.A.N. Construction ...
V.A.N. Construction ... asked asked for a Certificate
Certificate of
of Insurance
Insurance listing
listing 20
Arion as an additional Arion additional insured insured on a Commercial
Commercial General
General Liability
Liability Policy
Policy issued
issued to Aspis'
Aspis' former
former client,
client,
Domovoy" Domovoy" and
and that
that "20
"20 Arion
Arion has
has never
never been
been a client
client of
of Aspis"
Aspis" (NYSCEF
(NYSCEF Doc No. 116, at ,r,r Doc No. ~~ 6, 8).
Aspis also Aspis also includes
includes in support
support of
of its motion
motion a series
series of
of emails
emails reflecting
reflecting communications communications between
between VAN
VAN
Aspis regarding
and Aspis regarding the
the certificate
certificate (NYSCEF
(NYSCEF Doc
Doc No. Aspis argues No. 115). Aspis argues that that these
these submissions
submissions
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conclusively conclusively establish
establish the lack
lack of privity between
of privity between 20 Arion Arion and Aspis,
Aspis, and that
that 20 Arion's
Arion's cause
cause of
of action
action
sounding negligence must sounding in negligence must therefore therefore be dismissed
dismissed as Aspis
Aspis owed
owed no duty
duty of
of care
care to 20 Arion.
Arion. Aspis
Aspis
further further argues that 20 Arion argues that Arion has
has failed
failed to state
state a cognizable
cognizable cause
cause of
of action
action sounding
sounding in fraud
fraud due to its
failure failure to adequately
adequately plead justifiable reliance plead justifiable reliance on the statements statements in the certificate.
certificate. In this
this regard,
regard, Aspis
Aspis
notes the explicit notes explicit disclaimer language contained disclaimer language within the certificate, contained within certificate, as well well as 20 Arion's failure to Arion's failure
plead a misrepresentation plead misrepresentation allegedly allegedly made
made by Aspis
Aspis directly
directly to it.
In opposition,
opposition, 20 Arion
Arion asserts
asserts that,
that, upon
upon consideration
consideration of
of a motion
motion pursuant
pursuant to CPLR
CPLR 3211 (a)
(7), the facts as alleged alleged in the
the complaint must be accepted complaint must accepted as true.
true. 20 Arion contends that Arion contends since the that since
amended amended second
second third-party
third-party complaint
complaint alleged
alleged that
that 20 Arion
Arion had retained
retained Aspis
Aspis to provide
provide services
services in
obtaining liability insurance obtaining liability insurance for the the subject premises, it has adequately subject premises, adequately established established privity sufficient to privity sufficient
sustain sustain a cause
cause of
of action
action sounding
sounding in negligence
negligence at this juncture in the this juncture the litigation litigation (NYSCEF
(NYSCEF Doc.
Doc. No. 93 at
,r,-r 14). In further
further support of this
support of this contention, contention, 20 Arion
Arion annexes
annexes to its opposition opposition papers
papers a series
series of
of email
email
communications between representatives communications between representatives of Aspis and on behalf of Aspis of 20 Arion behalf of (NYSCEF Doc Arion (NYSCEF Doc No. 149). 20
Arion Arion further
further argues
argues that
that its allegation
allegation that
that "20
"20 Arion
Arion reasonably
reasonably relied
relied on the
the representations
representations in the
Certificate Certificate of Liability Insurance"
of Liability Insurance" (NYSCEF Doc No.
(NYSCEF Doc No. 93)
93) is sufficient
sufficient to establish
establish the element of
the element of
justifiable reliance justifiable reliance necessary necessary to sustain
sustain a cause
cause of
of action
action sounding
sounding in fraud,
fraud, and
and that
that this
this branch of Aspis's
branch of Aspis's
motion must motion must therefore
therefore also
also fail.
In reply,
reply, Aspis
Aspis highlights
highlights that
that 20 Arion
Arion has neither
neither provided
provided additional
additional details
details or additional
additional
allegations allegations in support
support of
of its cause
cause of
of action
action sounding
sounding in fraud,
fraud, to ameliorate
ameliorate any deficiencies thereof, any deficiencies thereof, nor nor
provided a client provided client affidavit affidavit or any
any other
other evidence
evidence sufficient
sufficient to "raise
"raise an issue
issue of
of fact
fact as to the
the relationship
relationship
between 20 Arion between Arion and Aspis"
Aspis" (NYSCEF
(NYSCEF Doc
Doc No.
No. 153 at 10).
motion pursuant
On a motion pursuant to CPLR CPLR 3211 (a) (7) to dismiss dismiss a complaint,
complaint, the
the court
court must
must accept
accept the
the
facts as alleged
alleged in the
the complaint
complaint as true,
true, afford the plaintiff afford the plaintiff the
the benefit
benefit of
of every
every possible favorable
possible favorable
inference, inference, and determine
determine only
only whether
whether the facts as alleged alleged fit within
within any
any cognizable legal theory cognizable legal theory (see
Leon v Martinez, Leon Martinez, 84 NY2d
NY2d 83, 87 (1994]).
83,87 [1994]). "Although the facts pleaded "Although the pleaded are presumed presumed to be true
true and are to
be accorded
accorded every
every favorable
favorable inference,
inference, 'bare
'bare legal conclusions
conclusions as well
well as factual
factual claims
claims flatly
flatly contradicted
contradicted
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not entitled
record are not
by the record such consideration"'
entitled to any such (Cruciata v O'Donnell consideration'" (Cruciata O'Donnell & Mclaughlin, Esqs., Mclaughlin, Esqs.,
Dept 2017],
AD3d 1034, 1035 [2d Dept
149 AD3d quoting Everett 2017), quoting Police Dept., Eastchester Police
Everett v Eastchester AD3d 1131, 1132 Dept., 127 AD3d
2015». "Where
Dept 2015)).
[2d Dept evidentiary material "Where evidentiary considered on a motion submitted and considered
material is submitted dismiss a motion to dismiss
complaint complaint pursuant CPLR 3211 (a) (7), and the motion pursuant to CPLR converted into not converted
motion is not one for summary into one summary
the question
judgment, the judgment, becomes whether question becomes the plaintiff whether the of action, cause of
plaintiff has a cause not whether action, not the plaintiff whether the has plaintiff has
stated stated one and, unless been shown has been
unless it has shown that material fact as claimed that a material claimed by the not a plaintiff to be one is not the plaintiff
fact at all and unless it can and unless that no significant said that
can be said exists regarding dispute exists
significant dispute dismissal shall regarding it, dismissal not shall not
eventuate" (Clevenger v Yuzek, 222 AD3d eventuate" (Clevenger 931, 934 [2d Dept AD3d 931, 2023]).
Dept 2023».
motion to dismiss
contrast, a motion In contrast, pursuant to CPLR dismiss pursuant 321 l(a)(l) may CPLR 3211(a)(l) granted only may be granted if the only if
documentary evidence submitted documentary evidence the moving submitted by the party utterly moving party the factual refutes the
utterly refutes allegations of factual allegations the of the
complaint establishes a defense conclusively establishes
complaint and conclusively defense to the matter of claims as a matter
the claims law (see Goshen of law Mutual Goshen v Mutual
Life of NY., Life Ins. Co. of 314, 326 NY2d 314,
NY., 98 NY2d Granada Condominium [2002]; Granada
326 [2002); III Assn.
Condominium III AD3d Palomino, 78 AD3d
Assn. v Palomino,
Dept 2010)).
996, 996 [2d Dept "In order 2010». "In documentary, it must qualify as documentary,
evidence to qualify
order for evidence unambiguous, must be unambiguous,
authentic, and undeniable" authentic, Law Offices (Bianco v Law
undeniable" (Bianco Prakhin, 189 AD3d of Yuri Prakhin,
Offices of 1328). ''Neither AD3d at 1328). "Neither
affidavits, deposition affidavits, deposition testimony, testimony, nor letters are considered nor letters documentary evidence considered documentary evidence within the intendment within the intendment
of CPLR 321 ofCPLR l(a)(l)" (id).
3211(a)(1)" (id).
"A cause "A cause of
of action
action alleging fraud requires alleging fraud plead: (l)
plaintiff to plead:
requires the plaintiff misrepresentation material misrepresentation (1) a material
of a fact, (2) knowledge of falsity, (3) an intent of its falsity,
knowledge of reliance, (4)
induce reliance,
intent to induce (4) justifiable reliance, and (5)
justifiable reliance,
damages" (Da damages" Silva v Champ (Da Silva Corp., 186 AD3d Constr. Corp.,
Champ Constr. 452, 454 [2d Dept AD3d 452, 2020)). "The Dept 2020)). plaintiff must "The plaintiff must
show not only show that he [or she] actually only that relied on the actually relied but also misrepresentation, but
the misrepresentation, that such also that was reliance was
such reliance
reasonable" reasonable" (Spector AD3d 820, 821-822 (Spector v Wendy, 63 AD3d 2009)). "[M]ere Dept 2009».
821-822 [2d Dept "[M]ere conclusory language, conclusory language,
absent absent specific
specific and
and detailed
detailed allegations establishing a material allegations establishing of fact, misrepresentation of
material misrepresentation of knowledge of
fact, knowledge
falsity or reckless falsity reckless disregard truth, scienter, the truth,
disregard for the scienter, justifiable reliance, and justifiable reliance, proximately caused damages proximately
and damages caused
thereby, cause of state a cause
insufficient to state
thereby, is insufficient of action fraud" (Old action for fraud" (Old Republic Cardinal Republic Nat. Title Ins. Co. v Cardinal
Abstract Corp., Abstract AD3d 678, Corp., 14 AD3d 680 [2d Dept 678,680 2005)).
Dept 2005)).
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Here, Here, accepting
accepting the
the facts
facts alleged
alleged in support
support of
of the
the fraud
fraud cause
cause of
of action
action against
against Aspis
Aspis as true,
true, and
and
according according 20 Arion
Arion the benefit of
the benefit of every
every favorable
favorable inference,
inference, the
the amended
amended second
second third-party
third-party complaint
complaint
fails to set forth
forth a cognizable
cognizable fraud
fraud claim
claim with
with sufficient
sufficient particularity
particularity to satisfy
satisfy the
the requirements
requirements of
of CPLR
CPLR
3016 (b) (see IndyMac 3016 IndyMac Bank, Bank, F.S.B.
F.S.B. v Vincoli, 105 AD3d AD3d 704,
704, 707
707 [2d Dept
Dept 20131).
2013]). Although
Although 20 Arion
Arion
alleged, alleged, broadly,
broadly, that
that it "reasonably
"reasonably relied
relied on the
the representations
representations in the
the Certificate
Certificate of
of Liability
Liability Insurance"
Insurance"
(NYSCEF (NYSCEF Doc
Doc No. 93, at ,r
No. 93, 'II 31),
31), Aspis's
Aspis's documentary
documentary submissions,
submissions, which
which included
included a copy
copy of
of the
the
certificate certificate of
of insurance,
insurance, utterly
utterly refute
refute this
this factual
factual allegation
allegation on which
which 20 Arion's
Arion's fraud
fraud claim
claim is based.
based.
Specifically, Specifically, 20 Arion's
Arion's alleged
alleged reasonable
reasonable reliance
reliance on the
the representations
representations in the certificate of the certificate of insurance insurance is
refuted refuted by the
the certificate's
certificate's disclaimer
disclaimer language
language notifying
notifying the
the certificate
certificate holder
holder that
that the
the certificate
certificate was
"issued "issued as a matter
matter of
of information
information only
only and confers
confers no rights
rights upon
upon the
the certificate
certificate holder"
holder" and
and does
does not
not
"amend, "amend, extend
extend or alter
alter the
the coverage
coverage afforded
afforded by the policies below"
the policies below" (NYSCEF (NYSCEF Doc No. 114). Indeed, Doc No. Indeed, "it "it
was unreasonable for [20 Arion] was unreasonable Arion] to rely rely on [[that
that certificate]
certificate] for coverage coverage in the
the face
face of th[ at] disclaimer ofth[at] disclaimer
language" (Da language" (Da Silva
Silva v Champ
Champ Constr.
Constr. Corp.,
Corp., 186 AD3d
AD3d 452,454
452, 454 [2d Dept
Dept 2020], quoting Greater 2020], quoting N.Y.
Greater NY.
Mut. Ins. Co v White Knight Knight Restoration,
Restoration, 7 AD3d
AD3d 292,293
292, 293 [1st Dept
Dept 2004]
2004] [fraud
[fraud claim
claim against
against insurance
insurance
broker, broker, "based
"based on the
the inaccurate
inaccurate certificates,
certificates, were
were properly
properly dismissed
dismissed because
because it was
was unreasonable
unreasonable to rely
rely
on them
them for coverage
coverage in the
the face
face of
of their
their disclaimer
disclaimer language"]; see also language"]; see Midura v The 740 Corp., also Midura Corp., 2002 2002
WL 34452935
34452935 [Sup
[Sup Ct, Kings
Kings County
County 2002,
2002, Rappaport,
Rappaport, J.]). Accordingly, Accordingly, 20 Arion's
Arion's fraud
fraud claim
claim as,
as
against against Aspis
Aspis is dismissed.
dismissed.
Aspis Aspis next
next argues
argues that
that 20 Arion's
Arion's fourth
fourth cause
cause of
of action,
action, sounding
sounding in negligent
negligent misrepresentation, misrepresentation,
must must also
also be dismissed,
dismissed, as there
there exists
exists no privity
privity between
between the parties. As
the parties. As to this
this claim,
claim, the
the amended
amended
second second third-party
third-party complaint
complaint alleges
alleges that
that Aspis
Aspis had
had a duty
duty to provide
provide it with
with an accurate
accurate certificate
certificate of
of
liability, liability, and that Aspis breached that Aspis breached that
that duty
duty by providing
providing it with
with a certificate
certificate which
which represented
represented that
that a
policy of policy of liability insurance was liability insurance was in effect effect at the relevant time when, relevant time when, in fact, no such policy actually such policy actually
existed existed (NYSCEF
(NYSCEF Doc No. 93, ,i,i
Doc No. '11'11 34-35).
34-35). "In
"In order
order to prevail
prevail on a cause
cause of
of action
action sounding
sounding in negligent
negligent
misrepresentation, misrepresentation, a plaintiff plaintiff is required
required to demonstrate
demonstrate '(I) the existence '(I) the existence of
of a special
special or privity-like
privity-like
relationship relationship imposing
imposing a duty
duty on the defendant
defendant to impart
impart correct information to the plaintiff;
correct information plaintiff; (2) that that the
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information information was
was incorrect; and (3)
incorrect; and reliance on the reasonable reliance
(3) reasonable information'" (Ramsarup the information'" Rutgers Cas.
(Ramsarup v Rutgers
Ins. Co., 98 AD3d
AD3d 494,
494, 496
496 [2d Dept 2012], quoting Dept 2012], quoting J.A.O Acquisition Corp. v Stavitsky, J.A.O Acquisition NY3d 144, Stavitsky, 8 NY3d
148 [2007]).
[2007]).
"It "It is well settled that
well settled that the
the duty
duty of
of an insurance broker runs insurance broker client or customer runs to its client and does customer and not
does not
extend extend to a purported
purported additional
additional insured policy procured insured on a policy by such procured by broker since such broker since there privity of there is no privity of
contract contract giving
giving rise
rise to liability" (Arredondo v City liability" (Arredondo City of New York, 6 AD3d of New 329 [1st 328,329
AD3d 328, Dept 2004], [1st Dept citing
2004], citing
American Ref-Fuel Co. of American Ref-Fuel of Hempstead Resource Recycling, Hempstead v Resource Inc., 248 Recycling, Inc., AD2d 420 248 AD2d 424 [2d Dept 420 424 1998]).
Dept 1998]).
Here, Here, 20 Arion
Arion alleges that it "retained alleges that Aspis as a licensed "retained Aspis insurance broker licensed insurance the State broker in the State of York to New York of New
obtain obtain liability
liability insurance
insurance for the Subject Property"
the Subject (NYSCEF Doc Property" (NYSCEF 93, at ,i No. 93,
Doc No. Aspis argues ~ 14). Aspis that, argues that,
based based on the submission of the submission the affidavit of the of the
affidavit of President of the President which she Aspis, in which of Aspis, avers that she avers Arion has that 20 Arion
never never been
been a client
client of
of Aspis (NYSCEF Doc
Aspis (NYSCEF No. 116 at ,i Doc No. and due ~ 8), and Arion's failure to 20 Arion's
due to provide any failure to provide
additional evidentiary additional evidentiary support support for the allegation for the that it retained complaint that
allegation in its complaint insurance Aspis as an insurance
retained Aspis
broker broker (NYSCEF
(NYSCEF Doc No. 93 at ,i
Doc No. ~ 14), it has conclusively established has conclusively that 20 Arion's established that allegation factual allegation
Arion's factual
that the parties that parties were privity is, indeed, were in privity indeed, not fact at all.
not a fact Aspis argues Therefore, Aspis
all. Therefore, that any argues that cause of
any cause action
of action
sounding sounding in negligence must fail.
negligence must
Here, Here, even
even if
if there
there were
were privity between 20 Arion privity between and Aspis, Arion and the cause Aspis, the of action cause of negligent action for negligent
misrepresentation, misrepresentation, based the inaccurate based on the inaccurate certificate, of action cause of
state a cause
certificate, fails to state action inasmuch was inasmuch as it was
unreasonable unreasonable as a matter
matter of
of law
law for 20 Arion have relied Arion to have the certificate relied on the the face certificate in the disclaimer of the disclaimer
face of
therein therein (see Greater New York Greater New AD3d at 293;
York Mut. Inc. Co., 7 AD3d Shapiro Realty Benjamin Shapiro
293; Benjamin Kemper Realty Co. v Kemper
Natl. Ins. Cos., 303 AD2d AD2d 245, [1st Dept
246 [1st
245, 246 [where .
2003] [where
Dept 2003] certificates of . .. .. certificates insurance of insurance
contain contain disclaimers
disclaimers that
that they
they are for information only, they information only, may not they may used as predicates not be used of claim of
predicates for a claim
negligent negligent misrepresentation"]).
misrepresentation"]). Accordingly, Arion's negligent Accordingly, 20 Arion's claim must misrepresentation claim
negligent misrepresentation also be must also
dismissed. dismissed.
All arguments
arguments raised
raised on the
the motion evidence submitted motion and evidence submitted by parties in connection by the parties thereto connection thereto
have have been
been considered
considered by this
this court, of whether regardless of
court, regardless they are whether they are specifically herein.
discussed herein.
specifically discussed
hereby,
Accordingly, it is hereby, Accordingly,
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ORDERED ORDERED that
that the
the motion
motion of
of second
second third-party
third-party defendant
defendant Aspis
Aspis (mot.
(mot. seq. no. 4), pursuant pursuant to
CPLR CPLR 321
3211l(a),
(a), to dismiss
dismiss the
the amended
amended second
second third-party
third-party complaint
complaint as against
against it is granted
granted and the
second second third-party
third-party action
action is dismissed
dismissed as against Aspisis and severed against Asp severed accordingly.
accordingly.
The The foregoing
foregoing constitutes
constitutes the
the decision,
decision, order judgment of order and judgment of the the court.
court.
Hon. Ingrid seph
seph J.S.C.
l.S.C.
a
Han. In r d Joseph Supreme ourt
Qurt Justice
,Justice
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