Mott v. New York Property Insurance Underwriting Ass'n

Majority

p. 981

Sonia Mott et al., Appellants, v New York Property Insurance Underwriting Assn. et al., Defendants, and Walter C. Taylor Agency, Inc., Respondent.

[619 NYS2d 986]

— Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion of defendant Walter C. Taylor Agency, Inc., to dismiss the action based upon plaintiffs’ failure to prove a prima facie case (see, CPLR 4401). "[Although it is well established in this State that a broker may be held liable, based upon either breach of contract or tort, for neglect in failing to procure insurance, in order to support such a recovery it must be demonstrated that the coverage sought could have been procured prior to the fire” (Rodriguez v Investors Ins. Co., 201 AD2d 355 , 356, citing American Motorists Ins. Co. v Salvatore, 102 AD2d 342 , 346; see also, Hjemdahl-Monsen v Faulkner, 204 AD2d 516 ; Kinns v Schulz, 131 AD2d 957 , 959; MacDonald v Carpenter & Pelton, 31 AD2d 952 , 954). Plaintiffs presented no proof to establish the availability of fire insurance coverage for their premises.

p. 982

We have reviewed plaintiffs’ remaining contentions and conclude that they are without merit. (Appeal from Judgment of Supreme Court, Monroe County, Stander, J.—Insurance Law.) Present—Denman, P. J., Green, Balio, Wesley and Callahan, JJ.

Cases cited

Rodriguez v. Investors Insurance Co. of America 201 AD2d 355 N.Y. App. Div. 1994-02-15 at 356 p. 981
American Motorists Insurance v. Salvatore 102 AD2d 342 N.Y. App. Div. 1984-06-26 at 346 p. 981
Kinns v. Schulz 131 AD2d 957 N.Y. App. Div. 1987-06-11 at 959 p. 981