American National Fire Insurance v. Howland LaClair Associates, Inc.

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: We agree with defendant that Supreme Court erred in refusing to dismiss the complaint and in finding that plaintiff insurer had a valid cause of action for indemnification. Plaintiff had issued an excess coverage policy at the request of defendant insurance agent. In its complaint, plaintiff alleged in a single cause of action that defendant was negligent and thereby breached its written agreement with plaintiff by failing to notify plaintiff of a change in coverage in the primary policy and by failing to cancel the excess policy when that change occurred. Those theories of liability, i.e., negligence and breach of contract, were dismissed as time barred. Plaintiff asserts on appeal that its "claim for implied indemnity arises out of the breach of the duty” owed by defendant, as agent, to plaintiff, its principal. Plaintiff failed to allege, however, that defendant breached a duty owed to a