802 F Realty Corp. v. American International Specialty Lines Insurance

Jun 10, 2002
Versions:295 A.D.2d 398
743 N.Y.S.2d 533
2002 N.Y. App. Div. LEXIS 6008

—In an action, inter alia, to recover damages for fraud, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Nassau County (McCarty, J.), entered April 27, 2001, which, upon granting the motion of the defendants American International Specialty Lines Insurance Co., American International Group, Inc., Sedgwick James of Pennsylvania, Inc., and Daniel P. Allen and the separate motion of the defendants Richard T. Sklover, doing business as The Sklover Organization, and James C. Herrmann, for summary judgment insofar as asserted against them, dismissed the complaint insofar as asserted against those defendants.

Ordered that the judgment is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The respondents made a prima facie showing of their respective entitlement to judgment as a matter of law by showing that the plaintiffs were unable to establish the elements of their causes of action based on fraud. The plaintiffs were unable to establish that misrepresentations were made as to the coverage available under an insurance policy on which they justifiably relied and that their reliance on such misrepresentations created a gap in insurance coverage for which the defendants were liable (see generally Lama Holding Co. v Smith Barney, 88 NY2d 413, 421). The plaintiffs were experienced in obtaining pollution liability insurance and had the means to ascertain the scope of coverage offered under the policy (see Curran, Cooney, Penney v Young & Koomans, 183 AD2d 742). Furthermore, the respondents established that the plaintiffs cannot demonstrate the breach of a duty which would support their remaining causes of action. As the plaintiffs failed to raise a triable issue of fact, the Supreme Court properly granted the motions and dismissed the complaint insofar as asserted against the respondents. Florio, J.P., O’Brien, Krausman and Luciano, JJ., concur.