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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