Dezer Props. II, LLC v Kaye Ins. Assoc., Inc.

Dezer Props. II, LLC v Kaye Ins. Assoc., Inc. 2007 NY Slip Op 01784 [38 AD3d 213] March 1, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

Dezer Properties II, LLC, Appellant,
v
Kaye Insurance Associates, Inc., Respondent, et al., Defendant.

—[*1] Churbuck Calabria Jones & Materazo, P.C., Hicksville (Nicholas P. Calabria of counsel), for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Steven L. Young of counsel), for respondent.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered on or about December 21, 2005, which, inter alia, granted defendant Kaye Insurance Associates, Inc. summary judgment dismissing the complaint as against it, unanimously affirmed, with costs.

Hartford Insurance Company (Hartford) brings this subrogation action in the name of its insured, plaintiff Dezer Properties II, LLC (Dezer), against defendant Kaye Insurance Associates, Inc. (Kaye), Dezer's insurance broker, for negligence and breach of contract with regard to Kaye's handling of a claim. It is alleged that Kaye failed to timely notify Hartford of a personal injury claim, permitting a default judgment to be entered against Dezer. However, notwithstanding the alleged negligence and late notice, Hartford defended Dezer, provided coverage, and indemnified its insured for the judgment.

The complaint was properly dismissed. Hartford, as subrogee of Dezer, has no claim against Kaye since Dezer suffered no loss as a result of Kaye's alleged negligence (see Federal Ins. Co. v Spectrum Ins. Brokerage Servs., 304 AD2d 316 [2003]). Moreover, Hartford itself has no claim against Kaye since Hartford is not in privity with Kaye and Kaye owed it no duty (see id.; St. George v Barney Corp., 270 AD2d 171, 172 [2000]; American Ref-Fuel Co. of Hempstead v Resource Recycling, 248 AD2d 420, 424 [1998]). Even if Kaye had been negligent in its handling of the claim, there would be no basis for a subrogation action since Kaye [*2]is not the party "legally responsible" for the underlying loss (see e.g. Winkelmann v Excelsior Ins. Co., 85 NY2d 577, 581 [1995]). Concur—Friedman, J.P., Marlow, Sweeny, Catterson and Malone, JJ.