A&B Furniture, Inc. v Pitrock Realty Corp.

[*1] A&B Furniture, Inc. v Pitrock Realty Corp. 2007 NY Slip Op 51656(U) [16 Misc 3d 1131(A)] Decided on July 19, 2007 Supreme Court, Kings County Demarest, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 19, 2007
Supreme Court, Kings County

A&B Furniture, Inc. d/b/a Ultimate Furniture, Inc., Plaintiff,

against

Pitrock Realty Corp., et al., Defendants.



36146/04

Carolyn E. Demarest, J.

Upon the foregoing papers in this action by plaintiff A & B Furniture, Inc. d/b/a Ultimate Furniture, Inc. (plaintiff) alleging, inter alia, breach of contract and negligence claims and seeking a declaration of insurance coverage and damages, defendant Tower Insurance Company of New York (Tower) moves for summary judgment dismissing plaintiff's complaint and all cross claims as against it, or, it the alternative, for an order, pursuant to CPLR 603, severing plaintiff's claims as against it and defendant M & R Marcus Co. East Meadow, Ltd. (Marcus) from plaintiff's claims as against defendant Pitrock Realty Corp. (Pitrock). Marcus moves for summary judgment dismissing all claims, including cross claims, as against it or, in the alternative, for an order limiting plaintiff's damages to the limits of property coverage under the relevant insurance policy issued by Tower, and severing the claims as against Pitrock from the insurance related claims as against it and Tower.

Pursuant to a written lease dated June 7, 2001, plaintiff, as tenant, occupied the first floor and basement of a two-story commercial building located at 1704-1706 Pitkin Avenue, in Brooklyn, New York, which it leased from Pitrock, as landlord, to operate its retail furniture store. The premises were constructed on January 31, 1946, and the New York City Department of Buildings never permitted the use and occupancy of the second floor of the premises, which remained unoccupied and vacant. Under the lease, Pitrock was responsible for the structural repairs to the premises, including the roof.

Aaron Francis (Francis), plaintiff's president, heard of Marcus through the [*2]Yellow Pages and, after calling different insurance brokers for quotes, contacted Marcus in order to obtain insurance coverage for plaintiff's furniture store. Francis, on behalf of plaintiff, signed an application for commercial insurance for the furniture store. He spoke with Jerry Lowenthal (Lowenthal) (who is now deceased) of Marcus, concerning his insurance needs. According to Francis, he requested "full coverage" for plaintiff's furniture business and $150,000 worth of contents coverage. Lowenthal inspected the furniture store. Marcus submitted the details of plaintiff's information to Tower, an insurance company, with which Marcus had a contract that allowed Marcus to bind insurance on behalf of Tower and to be paid a commission by Tower. Tower issued a commercial-lines insurance policy to plaintiff with an initial policy period from March 27, 2003 to March 27, 2004, and which was thereafter renewed with effective dates of March 27, 2004 to March 27, 2005. Plaintiff received a copy of the insurance policy, but Francis claims that he did not have time to read it.

The insurance policy issued by Tower to plaintiff covers damage or loss to covered property at plaintiff's furniture store, subject to the policy's terms and conditions. The policy's property coverage part provides only named-peril coverage, i.e., coverage for property damage "caused by or resulting from" specified causes of loss. The "Covered Causes of Loss," which apply "[w]hen Basic is shown in the Declarations," and found in the "Causes of Loss-Basic Form." These causes of loss include, among other things, "Windstorms or Hail." Collapse is not a covered cause of loss other than with respect to a sinkhole, and water damage is not a covered cause of loss unless caused by sprinkler leakage.

With respect to the named-peril of "Windstorm or Hail," the policy provides under "Causes of Loss-Basic Form":

"A. COVERED CAUSES OF LOSS

. . . Covered Causes of Loss means the following:

* * *

4. Windstorm or Hail, but not including:

* * *

C. Loss or damage to the interior of any building

or structure, or the property inside the building or

structure, caused by rain . . . whether driven by

wind or not, unless the building or structure first

sustains wind . . . damage to its roof or walls

through which the rain . . . enters."

On September 8, 2004, there was a storm, and the roof of the premises collapsed onto the second floor, which then collapsed onto the first floor. Plaintiff suffered damages to its inventory located in the premises. Plaintiff timely notified Tower of its loss on the same date. Following an investigation of plaintiff's claim, Tower, by letter [*3]dated October 7, 2004, disclaimed coverage based upon the ground that the damages sustained did not result from any of the covered causes of loss as specified in the policy. Specifically, Tower stated that its investigation disclosed that the damages to the premises resulted from the collapse of the roof from the weight of water which collected on the roof and was unable to drain.

On November 3, 2004, plaintiff filed this action against Tower and Marcus and, in January 2005, plaintiff served a supplemental summons, adding its landlord, Pitrock, as a defendant. Plaintiff's amended complaint, dated August 19, 2005, alleges that Tower breached its insurance policy with it by denying coverage for its September 8, 2004 loss.

Plaintiff, in its first cause of action against Tower, seeks a declaration of coverage, and, in its second cause of action for breach of contract, seeks monetary damages as against Tower for its losses due to Tower's liability under its contract of insurance. Plaintiff's third cause of action, which seeks damages for negligence as against Marcus, asserts that Marcus improperly advised it of the types and amounts of insurance Tower should provide, and that Marcus allegedly failed or omitted to obtain insurance that would have covered its loss by failing to obtain "all perils coverage" for it. Plaintiff's fourth cause of action, which seeks damages for breach of contract as against Marcus, alleges that Marcus breached the contract it had with it to obtain appropriate insurance coverage for its business by failing to obtain the type and amount of insurance that it should have obtained for it. Plaintiff's fifth cause of action requests damages as against Pitrock for breach of the covenant of quiet enjoyment due to its failure to maintain and repair the roof, structural walls, and structural beams of the premises. Plaintiff's sixth cause of action against Pitrock seeks damages against it based upon Pitrock's alleged breach of its duty to repair or correct the defects at the premises, of which Pitrock had notice, and plaintiff's seventh cause of action seeks the return of its security deposit from Pitrock.

Tower, in its answer, asserts a cross claim against Pitrock based upon Pitrock's alleged negligence and/or breach of contract in causing the alleged loss. Marcus asserts cross claims against Pitrock and Tower for indemnification and contribution, and Pitrock asserts cross claims against Tower and Marcus for indemnification and contribution.

Plaintiff, in opposition to Tower's instant motion for summary judgment, claims that Tower is asking the court to determine, as a matter of law, that an ambiguous insurance policy provides no coverage for the losses sustained by it. The policy provision at issue, however, is not ambiguous, but clearly and unambiguously provides that coverage does not include "[l]oss of damage to the interior of any building or structure, or the property inside the building or structure, caused by rain . . . whether driven by wind or not, unless the building or structure first sustain[ed] wind . . . damage to its roof or walls through which the rain . . . enters." "Where the provisions of [a] policy are clear and unambiguous, they must be given their plain and ordinary meaning, and courts should refrain from rewriting the agreement'" (United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232 [1986], quoting Government Employees Ins. Co. v Kligler, 42 NY2d 863, [*4]864 [1977]).

In a named-peril policy, such as the one at bar, the insured "bears the initial burden of showing that the insurance contract covers the loss," i.e., that the loss resulted from a covered peril (Roundabout Theatre Co. v Continental Cas. Co., 302 AD2d 1, 6 [2002]). Under the terms of the subject insurance policy, in order for there to be insurance coverage under the covered peril of "Windstorm or Hail," plaintiff must establish that the building "first sustain[ed] wind . . . damage to its roof or walls through which the rain . . . enter[ed]." More specifically, plaintiff must demonstrate that wind was "the proximate, efficient and dominant cause" of the collapse that allowed the water to enter the building and damage its property (see Album Realty Corp., v American Home Assur. Co., 80 NY2d 1008, 1010 [1992]).

Tower, in support of its motion, has submitted the sworn affidavit of its expert, Henry "Hank" R. Naughton (Naughton), a professional engineer, in which, after inspecting the property on September 16, 2004, he opines, "within a reasonable degree of engineering certainty, that the partial roof failure at the premises was a consequence of an overload from a building of water on the rear portion of the second-story roof." Naughton states that "[t]here was no observable evidence that any foreign object had been blown into and penetrated the roof during the storm before its collapse." He explains that a restricted or clogged roof drain and the flash flooding that day rendered the weight of ponded water on the roof to be sufficient to have caused the partial collapse of the roof. Thus, Naughton concludes that the loss resulted from water which collected due to the heavy rainfall and inadequate drainage.

Naughton, in his affidavit, further specifically opines that "[w]ind did not cause or contribute to the partial collapse of the roof structure." He sets forth that "the highest sustained wind speed reported at JFK and LaGuardia airports from the time the store was closed on September 7, 2004, through 9:00 A.M. on September 8, 2004, when the loss was discovered, from the southeast was 15 miles per hour." Naughton additionally notes the "[t]he wind speed actually acting on the south parapet wall would have been less than 15 mph because of shielding and ground effects," and that "[t]he highest winds reported that day occurred well after the loss was discovered."

Naughton also opines that "[t]he manner of the collapse of the 12-feet-by-22-feet of roof structure indicated that the rear (south) parapet wall most likely collapsed after the roof collapse, thus further confirming that wind was not a factor in the roof collapse, let alone a significant one." Naughton explains that "[a] rotational collapse of the approximate 18-inch-high rear parapet wall before the roof collapse would have resulted in localized loading to the roof structure," and "[t]he roof area affected by the parapet wall collapse would have been 18 inches (south to north) across less than the full 22 feet of building width."

To further buttress its contention of lack of coverage, Tower also has submitted the September 27, 2004 report of Herman Silverberg (Silverberg), a professional engineer, of [*5]LGI Levine Group, Inc., the engineering firm retained by Pitrock's insurance carrier, St. Paul-Travelers Insurance Co.(Travelers). Silverberg, in his September 27, 2004 report, states that "due to the high intensity rain, the weight of the accumulated water overloaded the roof beams, causing them to crack and break." Silverberg further states that "[t]he wood beams show that they failed due to an overloaded condition."

Thus, Tower, by the foregoing, has made a prima facie showing that plaintiff's loss was caused by the weight of water which collected on the roof during a heavy rainstorm, rather than by wind. The burden, therefore, shifted to plaintiff to lay bare its proof, in admissible form, sufficient to raise a triable issue of fact as to whether wind caused the collapse (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Plaintiff, in response to Tower's motion, asserts that Tower did not provide it with the information developed by Naughton prior to the date that Tower denied coverage to it and did not identify Naughton as an expert in Tower's response to August 9, 2006 and August 30, 2006 letters sent by it. In addition, plaintiff asserts that Tower stated, in its November 16, 2005 response to Marcus' combined demands, that it had "not yet retained any expert witness for the trial of this action." Plaintiff argues that Tower should have provided it with the report which was prepared by Naughton prior to the date it denied coverage to it, and that based upon Tower's failure to do so and its failure to identify Naughton as an expert in its CPLR 3101(d)(1) response to Marcus, it should be precluded from relying upon Naughton's affidavit and the exhibits annexed thereto in its motion for summary judgment.

Plaintiff's argument is rejected. Tower, in its October 7, 2004 disclaimer letter, fully explained the specific basis for its disclaimer of coverage under the policy provisions. No prejudice to plaintiff has been shown by Tower's failure to earlier disclose Naughton's expert opinion (see Tronolone v Praxair, Inc., 39 AD3d 1146, 1147 [2007]). Moreover, it is noted that Tower's response to Marcus' combined demand did identify Naughton under "Witness Information."

Plaintiff further argues that Naughton did not arrive at the premises until eight days after the building collapsed and after salvage operations had occurred, and that he, therefore, could not have had definite and certain knowledge of the cause and the full extent of damage. Such argument is unavailing. Naughton, in his affidavit, has set forth, in detail, the basis upon which his opinion, to a reasonable degree of engineering certainty was reached. Thus, plaintiff, in order to defeat Tower's motion, must adduce some expert evidence which specifically disputes Naughton's findings and raises a triable factual issue. It is also noted that plaintiff's own expert engineer (whose report is discussed below) did not inspect the premises until October 4, 2004.

Plaintiff additionally points to the fact that on February 2, 2005, an inspection company retained by the carrier for Pitrock, M.J. Minogue Associates, Inc. (Minogue), submitted an addendum of its earlier report to Travelers. Minogue states that additional damages were discovered by Casella Construction, the insured's contractor, during [*6]reconstruction. These damages were that "the roof beams at the rear first story roof were cracked, but did not collapse or deflect significantly, [and,] therefore, they were not discovered at the time of [its] original inspection." Plaintiff argues that if Naughton had revisited the premises at a later date, he may have changed his conclusion that wind was not the cause of the collapse.

Plaintiff's argument must be rejected. The plaintiff does not point to any evidence suggesting that the cracks in the roof beams at the rear first story roof indicate that wind played any role in the cause of the collapse. Furthermore, as noted above, Naughton states that if wind had caused the 18-inch parapet wall to have fallen first, the area of roof damage would have been confined to the area immediately adjacent to the wall. Thus, discovery of this additional damage does not support plaintiff's claim.

Plaintiff, to support its contention that the cause of the losses was not solely water damage, but that wind also was a substantial factor in the collapse of the building and the damages sustained by it, relies upon copies of notes made by Tower on September 14, 2004. Plaintiff argues that these notes show that Tower's initial response was that the damages were caused by wind and water. The notes, however, refer to "wind & water" and state "weight of water w ?/ wind." Thus, such notes do not evidence a conclusion by Tower of the role of wind in the collapse, but merely reflect an initial questioning by it (prior to Naughton's September 16, 2004 inspection) of whether wind was involved in such collapse.

Plaintiff further relies upon a copy of the claim record for Travelers (which, as noted above, was the property damage insurance carrier for Pitrock), which recorded the cause of loss code as "windstorm." This code designation, however, simply appears to have been based upon the fact that the "insured state[d] the roof collapsed due to stormy conditions." It does not set forth any opinion or conclusion that wind was a substantial factor in the cause of the collapse.

The October 28, 2004 report issued by plaintiff's own expert professional engineers, Louis Schwartz (Schwartz) of Schneider Engineering, PLLC, who inspected the property on October 4, 2004, and Steven Schneider (Schneider), who is the principal of Schneider Engineering, PLLC, has also been submitted herein. Plaintiff points to the statement in Schneider and Schwartz's report, that the "weight of the water was not the cause of the collapse exclusively." However, no where in this report by Schneider and Schwartz do they actually conclude that wind was the cause of the accident. Rather, Schneider and Schwartz state that "water was the root cause of the collapse," and that "water intrusion is at the heart of this collapse." Specifically, Schneider and Schwartz explain that "over time, water had infiltrated into the wall and roof system," and that "[t]his intrusion systematically deteriorated the mortar and the bricks and it appears may have rotted the roof joists." Schneider and Schwartz conclude, within a reasonable degree of engineering certainty, that "[w]ater penetration of the walls, over time, was the root cause of the collapse." They explain that "[t]he sudden loading of the bricks with [*7]water already on the roof coupled with the deteriorated condition of the framing and their supports were not sufficient to handle the sudden impact load."

With respect to the wind, Schneider and Schwartz conclude that "[t]he wind, though significant, was not unusual for the type of storm event and only a weakening, over time, of the wall could have collapsed the wall." They find that "[t]he key to the entire event was water penetrating into the wall cavity over time and deteriorating the mortar and more than likely the roof framing." Thus, plaintiff's own expert engineers concluded that water, combined with gradual deterioration over time, was the operative cause of the collapse.

Plaintiff, however, relies upon the statement in Schneider and Schwartz's report, that "[i]t is likely that the parapet wall collapsed onto the roof due to weakening from water intrusion and wind." Schneider and Schwartz go on to state that "[t]his then started the roof collapse with the weight of the bricks and water on the roof material and insufficiently supported joists due to masonry and/or joint deterioration." While Schneider and Schwartz acknowledge that "[i]ndividually, none of these events should have been sufficient to have caused the collapse," they find that "the factors taken together weakened the structure and allowed the collapse." Plaintiff contends that this raises a triable issue of fact as to whether wind caused the subject roof collapse.

It is well established, though, that when proof comes in the form of expert testimony, it "must represent a reasonable degree of certainty, and must not be based on supposition or speculation" (People v Donohue, 123 AD2d 77, 79 [1987]; see also Nieves v City of New York, 91 AD2d 938, 939 [1983]). Thus, in order to constitute admissible evidence sufficient to raise a triable issue of fact, an "expert's opinion taken as a whole must reflect an acceptable level of certainty" (Erbstein v Savasatit, 274 AD2d 445, 446 [2000]; see also Gomez v New York City Hous. Auth., 217 AD2d 110, 117 [1995]). While Schneider and Schwartz allude to the possibility that wind may have played a small part in the collapse, their assertion is equivocal at best, and is predicated on the assumption that the parapet wall fell onto the roof, precipitating its collapse. However, they admit that they do not know whether the parapet wall fell before or after the collapse. Specifically, they state that "[i]t is unclear whether the parapet wall collapsed before or after the roof collapse." Naughton, in contrast (as discussed above), states, with a reasonable degree of engineering certainty, that had the 18-inch parapet wall fallen first, the area of roof damage would have been confined to the area immediately adjacent to the wall, not the 12-feet-by-22-feet section that did collapse.

Thus, inasmuch as Schneider and Schwartz's averment regarding the role of wind in the collapse lacks an acceptable level of certainty, it is insufficient to raise a triable issue of fact in this regard (see Gomez, 217 AD2d at 117; Nieves, 91 AD2d at 939). Moreover, it is noted that Schneider and Schwartz conclude that "[t]he prevailing weather conditions should not have been able to have caused a failure of the parapet wall."

Plaintiff has also submitted a May 17, 2006 report by his expert, Paul Eisen [*8](Eisen), a certified consulting meteorologist. Eisen, in his report, states that "[w]eather conditions on the morning of September 8, 2004 in the New York City area were quite stormy" due to remnants of Hurricane Frances. Eisen reports that heavy "[r]ainfall amounts ranging from an inch up to [six] inches were common across the area," and that "[h]eavy rainfall over short time periods . . . caused extensive flash flooding." Eisen further states that in addition to the heavy torrential rains, "the winds associated with remnant Frances were also reported to be relatively strong and gusty," with winds gusting to between 20 and 23 miles per hour between 8:00 A.M. and 10:00 A.M. on September 8, 2004 in New York City locations, and "that wind direction was generally from the southeasterly direction."

Eisen explains that the southeasterly wind direction is a potentially significant factor to the building collapse under investigation because according to Schneider and Schwartz's report, "the collapse of the south facing parapet wall may have occurred prior to the collapse of the flat second floor roof (and its collected water) onto the vacant second floor, which ultimately collapsed (with collected water) on the first floor." Eisen concedes that "[b]y itself, one would not expect a weather event consisting of several hours of gusty winds and torrential rains to cause a wall to collapse." He opines that "[n]onetheless, the combined force of the gusty winds blowing against the parapet wall, along with the weight of collected water on the flat roof from earlier heavy rain, could have contributed to the collapse."

While Eisen, in his report, speculates that wind was a factor in the collapse, he is not an engineer, but a meteorologist, and, therefore, is not competent to reach such a conclusion (see Gomez, 217 AD2d at 116-117). Furthermore, Eisen's conclusion that the combined force of the gusty winds blowing against the parapet wall could have contributed to the collapse is based upon and relies upon the conclusion of Schneider and Schwartz's report that the collapse of the south facing parapet wall may have occurred prior to the collapse of the flat second floor roof (and its collected water) onto the vacant second floor. As discussed above, this conclusion lacks sufficient certainty since Schneider and Schwartz admit that "[i]t is unclear whether the rear parapet wall collapsed before or after the roof collapse."

Moreover, while Eisen relies upon Schneider and Schwartz's statement, in their report, that "[i]t is likely that the parapet wall collapsed onto the roof due to weakening from water intrusion and wind," Schneider and Schwartz (as previously discussed) found that the water penetration of the walls, over time, rather than the wind, "was the root cause of the collapse," and that "[t]he prevailing weather conditions should not have been able to have caused a failure of the parapet wall."

Plaintiff further argues that fact witnesses and experts must have their opinions tested through cross-examination. This argument, however, cannot provide a basis to deny summary judgment where, as here, the engineers which examined the premises all concluded that the weight of water, as opposed to wind, was the operative cause of the [*9]collapse, and there is no evidentiary proof refuting this sufficient to raise a genuine triable issue of fact. "A plaintiff opposing a motion for summary judgment . . . cannot rely upon the hope that somehow, on cross-examination of the defendant's witnesses, [it] can establish [its] case" (Badman v Civil Serv. Empls. Assn., 91 AD2d 858, 858 [1982]).

Thus, since it has been demonstrated that the building did not first sustain actual damage to its roof and fall by the direct force of the wind which caused water damage due to water entering the building through openings made by the wind (see Protzmann v Eagle Fire Ins. Co. of NY, 272 App Div 319, 320 [1947]) and that wind was not the proximate, efficient, and dominant cause of the water damage (see Album Realty Corp., 80 NY2d at 1010) or the direct cause of the damage to plaintiff's property (compare Mawardi v New York Prop. Ins. Underwriting Assn., 183 AD2d 756, 757 [1992]), plaintiff's claim was not covered under the subject policy issued by Tower (see Litrenta v New Hampshire Ins. Co., 203 AD2d 261, 262 [1994]). Consequently, summary judgment dismissing plaintiff's complaint as against Tower must be granted (see CPLR 3212 [b]). Furthermore, since the policy provided by Tower issued no coverage for plaintiff's loss, Pitrock and Marcus are not entitled to indemnification or contribution from Tower, and their cross claims as against Tower must be dismissed.

In turning to Marcus' motion, it is initially noted that while plaintiff contends that Marcus' motion should be denied as procedurally defective because it is unsupported by an affidavit of a person with personal knowledge of the facts and circumstances underlying its defense, such contention is without merit. Marcus has supported its motion with the relevant deposition testimony (see generally Gaeta v New York News, 62 NY2d 340, 350 [1984]).

As to the merits of Marcus' motion, plaintiff's claims as against Marcus are

predicated on Marcus' alleged breach of its duty to it, as its broker, to represent its interest in providing the appropriate type and amount of insurance coverage for its business at the premises. Plaintiff maintains that after discussing the insurance requirements with it and inspecting the premises, Marcus failed to exercise reasonable diligence in determining the type and/or amounts of insurance coverage that Tower was to provide to it. While plaintiff acknowledges that insurance brokers "have no continuing duty to advise, guide or direct a client to obtain additional coverage" (Murphy v Kuhn, 90 NY2d 266, 270 [1997]; see also M & E Mfg. Co. v Frank H. Reis, Inc., 258 AD2d 9, 11 [1999]), it argues that its claim against Marcus is that Marcus, at the outset of its request for coverage, improperly advised it and omitted to obtain the appropriate type and amounts of insurance, based upon the information that it gave to Marcus, which would have provided it with coverage for its loss.

It is well established that "insurance agents have a common law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so" (Murphy, 90 NY2d at 270). However, the scope of an insurance broker's duty is to procure insurance coverage based upon the specific terms of the [*10]request of the client for such coverage (see Murphy, 90 NY2d at 270; Loevner v Sullivan & Strauss Agency, 35 AD3d 392, 393 [2006]; Empire Indus. Corp. v Insurance Cos. of N. Am., 226 AD2d, 580, 581 [1996]; Chaim v Benedict, 216 AD2d 347, 347 [1995]). Absent a specific request for coverage or level of coverage, an insurance broker is not liable to an insured for any failure to procure any particular type or amount of coverage not already in the policy (see Murphy, 90 NY2d at 270; Madhvani v Sheehan, 234 AD2d 652, 654 [1996]; Empire Indus. Corp., 226 AD2d at 581; Chaim, 216 AD2d at 347; Barco Auto Leasing Corp. v Montano, 215 AD2d 617, 618 [1995]; Hjemdahl-Monsen v Faulkner, 204 AD2d 516, 517 [1994]; Erwig v Cook Agency, 173 AD 439, 439-440 [1991]).

Here, Francis testified, at his deposition, that during the procurement of coverage for the premises, he asked Marcus for "full coverage" for the premises (Francis' Dep. Tr. at 191). Plaintiff argues that this raises material issues of fact as to whether Marcus breached its duty to obtain the requested coverage for it. Francis conceded, however, that he did not explain to Marcus what he meant by "full coverage" (Francis' Dep. Tr. at 191). Francis further conceded that he did not ask about whether he would be covered for particular kinds of events, and that he "discussed nothing like . . . wind and rain" (Francis' Dep. Tr. at 193).

It has been uniformly held that such a general request for insurance coverage is insufficient to constitute a specific request for coverage (see Erwig, 173 AD2d at 439). Even a request for a "top of the line" policy and to be "fully covered" does not trigger any duty by the insurance broker to recommend or obtain a particular type of coverage not specifically requested by the plaintiff (Chaim, 216 AD2d at 347). Indeed, a request for "the best and most comprehensive coverage" has been held to be insufficient to establish liability upon the insurance broker for failure to procure a particular insurance coverage not specifically requested by the plaintiff (L.C.E.L. Collectibles v American Ins. Co., 228 AD2d 196, 197 [1996]). Thus, plaintiff's general request for full coverage did not constitute a specific request for coverage for building collapse or water damage.

Plaintiff, however, points to the fact that Paul Russo (Russo), Tower's Underwriting

Assistant, testified, at his deposition, that plaintiff, which did not have a prior history of coverage, was not eligible for insurance in the event of a collapse of the building in which his business was located (Russo's Dep. Tr. at 73-74, 87-88). Plaintiff asserts that Marcus did not inform it of the types of insurance it could not obtain for it, and contends that Marcus had an obligation to inform it that this coverage was unavailable to it.

Plaintiff argues that Marcus, as its broker, had a duty to make recommendations to it about additional coverage for all the risks that, in its opinion, were present at the premises, and to inform it that insurance for damages resulting from a collapse of the premises was not available to it from Tower. All parties agree that Marcus was an independent broker and not an agent of Tower despite the contract between Marcus and [*11]Tower. Plaintiff suggests that Marcus breached its duty to it by not securing coverage from a different insurer.

Plaintiff's argument must be rejected. The relationship between an insurance broker and the insured is not a professional relationship, but an ordinary commercial one, which does not generally give rise to a fiduciary relationship (see Murphy, 90 NY2d at 270; Paull v First UNUM Life Ins. Co., 295 AD2d 982, 984 [2002]; M&E Mfg. Co., 258 AD2d at 11). Here, there was no long-term or special or fiduciary relationship between plaintiff and Marcus. As noted above, plaintiff merely obtained Marcus' name through the Yellow Pages.

"Insureds are in a better position to know their personal assets and abilities to protect themselves more so than general insurance agents or brokers" (Murphy, 90 NY2d at 273). "[T]he insureds are the final decisionmakers in such risk management determinations"(M&E Mfg. Co., 258 AD2d at 11). "Thus, an insurance agent's duty to its customer is usually defined by the nature of the customer's request for coverage" (id.; see also Empire Indus. Corp., 226 AD2d at 581).

In this case (as discussed above), Francis admits that he did not specify the type of coverage sought, but, instead, merely claims that he relied on Marcus' employee's statement that he would "be fully covered" (Francis' Dep. Tr. at 193). Such general request cannot qualify as evidence of a legally recognizable or justifiable reliance on Marcus' expertise (see Murphy, 90 NY2d at 271).

Plaintiff also argues that Marcus should have advised it of the need to increase the policy limit from $150,000 to $250,000 following its receipt of a report made after an inspection of the premises conducted for Tower by Muller Investigation, which reported $250,000 of personal inventory. However, Francis specifically testified, at his deposition, that he had wanted to insure $150,000 worth of merchandise, although he had a lot more, because he did not want to pay too high a premium (Francis' Dep. Tr. at 192). Thus, Marcus had no obligation in this regard other than to follow plaintiff's specific request for $150,000 in merchandise coverage.

Additionally, while plaintiff does not dispute that its president, Francis, was given a copy of the policy (Francis' Dep. Tr. at 186), it asserts that he did not read it. Plaintiff argues that the vast majority of people who carry insurance never read their policies and that it had a reasonable expectation of appropriate coverage.

Plaintiff's argument is unavailing. An insured, upon receipt of its insurance policy, is bound by the terms, conditions, and limits of coverage reflected in the policy, whether or not he or she reads them (see Metzger v Aetna Ins. Co., 227 NY 411, 415-416 [1920]; L.C.E.L. Collectibles, 228 AD2d at 197; Worcester Ins. Co. v Hempstead Farms Fruit Corp., 220 AD2d 659, 660 [1995]; Rotanelli v Madden, 172 AD2d 815, 817 [1991]; American Motorists Ins. Co. v Salvatore, 102 AD2d 342, 345 [1984]). Plaintiff is conclusively presumed to have known, understood, and assented to the terms of the requirements of the insurance policy which it received (see Nicholas J. Masterpol, Inc. v [*12]Travelers Co., 273 AD2d 817, 818 [2000]; M&E Mfg. Co., 258 AD2d at 12; Madhvani, 234 AD2d at 654-655; Leiberthal v Agency Ins. Brokers, 216 AD2d 816, 817 [1995]). Therefore, plaintiff is bound by the contents of the policy and had constructive knowledge of its contents based upon its receipt of the policy (see Worcester Ins. Co., 220 AD2d at 660). Consequently, as there is no basis for any claims against Marcus, summary judgment dismissing plaintiff's complaint as against Marcus and all cross claims as against it must be granted (see CPLR 3212[b]).

In view of the dismissal of plaintiff's complaint as against Tower and Marcus, these defendants' alternative motions for severance (which would otherwise be required due to the resulting inherent prejudice to Tower and Marcus [see Dreizen v Morris I. Stoler, Inc., 98 AD2d 759, 759 (1983)]), are rendered moot. Plaintiff's action is, thus, severed by the granting of the summary judgment motions and shall continue as against Pitrock, as the remaining defendant herein.

Accordingly, Tower's motion and Marcus' motion for summary judgment dismissing plaintiff's complaint and all cross claims as against them, are granted.

The Court directs all remaining parties to appear for conference on October 18, 2007.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.