American Bldg. Supply Corp. v Petrocelli Group, Inc.

American Bldg. Supply Corp. v Petrocelli Group, Inc. 2011 NY Slip Op 01324 Decided on February 22, 2011 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 February 22, 2011
Gonzalez, P.J., Mazzarelli, Sweeny, Richter, Manzanet-Daniels, JJ.
3958 601562/08

[*1]American Building Supply Corp., Plaintiff-Respondent,

v

Petrocelli Group, Inc., Defendant-Appellant, Pollak Associates, Defendant.




Keidel, Weldon & Cunningham, LLP, White Plains (Stephen
C. Cunningham of counsel), for appellant.
Zisholtz & Zisholtz, LLP, Mineola (Stuart Zisholtz of counsel),
for respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered March 24, 2010, which denied defendant Petrocelli's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed as against Petrocelli. The Clerk is directed to enter judgment accordingly.

Plaintiff, who is in the business of selling and furnishing construction building materials to general contractors in the New York metropolitan area, commenced this action, alleging that the defendant broker was negligent and in breach of contract based on its failure to procure insurance coverage specifically requested by the plaintiff. To recover damages for negligence or breach of contract against a broker based on the broker's failure to procure a particular type of coverage, the plaintiff must demonstrate that he or she made a specific request to the broker for that coverage (Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152, 157-158 [2006]).

Issues of fact may exist with respect to whether the information provided by plaintiff a description of its business operations, a copy of the existing policy and its lease, and an apparent specific request for general liability coverage for its employees should have alerted defendant that the general liability policy obtained, which included a cross liability exclusion precluding coverage based on the injury of an employee, may not have provided the requested coverage (see e.g. Kyes v Northbrook Prop. & Cas. Ins. Co., 278 AD2d 736 [2000]; see also Herron v Grand Villa Resort, Inc., 2007 NY Slip Op 33208[U], 2007 WL 2988384 [2007]).

However, the presumption that a policy holder read and understood a policy of insurance duly issued to him or her precludes recovery in this action (see Busker on Roof Ltd. Partnership Co. v Warrington, 283 AD2d 376, 377 [2001]; McGarr v Guardian Life Ins. Co. of Am., 19 AD3d 254, 256 [2005]). Although the presumption may be overcome if there is wrongful conduct on the part of the broker, such as when the broker affirmatively misrepresents or fails to [*2]correct a misimpression regarding coverage (see e.g. Baseball Off. of Commr. v Marsh & McLennan, 295 AD2d 73 [2002]), there is no evidence of such an affirmative misrepresentation here.

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

ENTERED: FEBRUARY 22, 2011

CLERK