46th St. Dev., LLC v Marsh USA, Inc.

46th St. Dev., LLC v Marsh USA, Inc. 2012 NY Slip Op 07573 Decided on November 13, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 13, 2012
Gonzalez, P.J., Saxe, Catterson, Acosta, Gische, JJ.
8488 601222/10

[*1]46th Street Development, LLC, Plaintiff-Appellant,

v

Marsh USA, Inc., Defendant-Respondent.




Greenberg, Trager & Herbst, LLP, New York (Stuart Rosen of
counsel), for appellant.
Seyfarth Shaw LLP, New York (Jonathan P. Wolfert of
counsel), for respondent.

Appeal from order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about August 25, 2011, which granted defendant's motion to dismiss the complaint for failure to state a cause of action, deemed an appeal from the judgment, same court and Justice, entered October 18, 2011, dismissing the complaint (CPLR 5501 [c]), and, so considered, the judgment unanimously affirmed, with costs.

Plaintiff failed to state a cause of action based on defendant's failure to procure insurance coverage for a delay in obtaining temporary certificates of occupancy (TCO coverage) for the subject condominiums. Absent a specific request for the insurance, defendant, as broker, had no duty to obtain coverage (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152, 157-158 [2006]). Here, there is no evidence that plaintiff specifically requested that defendant obtain TCO coverage. Nor was there a special relationship between the parties (see Murphy v Kuhn, 90 NY2d 266, 272 [1997]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 13, 2012

CLERK