The following papers read on this motion:Notice of Motion and Affidavits XMemorandum of Law in Support XMemorandum of Law in Opposition XReply Memorandum of Law XRelief Requested Motion by the defendant, Adam Cohen Agency, Inc., for an order granting summary judgment, pursuant to CPLR 3212, dismissing the plaintiff’s complaint against it. The plaintiff submits opposition. The defendant submits a Memorandum of Law in Reply.BackgroundThe plaintiff initiated the instant action sounding in negligence, breach of fiduciary duty, and unjust enrichment as and against the defendant, Adam Cohen Agency, Inc.The plaintiff purchased the subject property and procured a residential insurance policy through defendant Allstate Insurance Company (hereinafter referred to as “Allstate”) in 1996. The Allstate policy has been renewed annually. In 2000, plaintiff requested a new insurance agent and selected Adam Cohen Agency, Inc. (hereinafter referred to as “ACA”). In 2009, plaintiff moved out of the subject property and requested that his records be updated to reflect his new address. Plaintiff received an undated letter, signed by ACA as agent for Allstate, confirming a change in mailing address and a change to the location of property.On April 10, 2016, the subject property sustained water damage. An investigation by Allstate revealed that the damage was likely the result of insufficient heating. In a letter dated June 2, 2016, Allstate informed plaintiff that coverage was being denied “based on several violations of the provisions of the policy” including that the subject property was not being used as a residence at the time the damage occurred.Applicable LawGenerally, the law is reasonably settled on initial principles 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; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage (Murphy v. Kuhn, 90 N.Y.2d 266; Hjemdahl-Monsen v. Faulkner, 204 A.D.2d 516). Where a special relationship develops between the agent and client, the agent may be liable for failing to advise or direct the client to obtain additional coverage, even in the absence of a specific request (Voss v. Netherlands Ins. Co., 22 N.Y.3d 728). An additional duty of advisement has been recognized in exceptional situations, including 1-the agent receives compensation for consultation apart from payment of the premiums; 2-there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or 3-there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on (Murphy, supra; see also Voss, supra).DiscussionIn support of its motion, ACA submits, inter alia, the June 2, 2016 denial letter, plaintiff’s deposition transcript, and an analysis of the damage conducted by H2M Architects and Engineers. Of note, plaintiff admits that he never specifically requested that ACA procure any new insurance policy, nor did he request that ACA review his coverage. ACA was not plaintiff’s insurance agent until 2000, at which point plaintiff merely renewed his policy annually. As such, ACA has met its burden of demonstrating that it did not breach any duty owed to the plaintiff (see Murphy, supra).In opposition, the plaintiff fails to establish that he made any request to ACA, let alone a specific request to procure a policy for a vacant or non-residential property. Plaintiff’s argument of a special relationship between himself and ACA is completely unsupported, even according to plaintiff’s own version of events. Here, ACA never received compensation with regard to plaintiff’s coverage; there was no interaction regarding a question of coverage where the plaintiff relied on the expertise of ACA; and last, while the relationship between plaintiff and ACA was lengthy, the circumstances of said relationship provide no indication that would put a reasonable insurance agent in ACA’s position on notice that their advice was being sought and specially relied upon (see Voss, supra).ConclusionIn light of the foregoing, ACA’s motion for summary judgment dismissing the plaintiff’s complaint as and against it is granted.Dated: January 30, 2019
