82 A.D.3d 1464 | N.Y. App. Div. | 2011
Plaintiffs, who are husband and wife, owned a home that was destroyed by fire in July 2001. At that time, the home was insured by defendant Travco Insurance Company (hereinafter Travelers), which paid plaintiffs’ claim, but thereafter gave plaintiffs notice that it would not renew their homeowner’s in
In December 2007, plaintiffs commenced this action alleging that Sils and Kenney (hereinafter collectively referred to as defendants) were negligent in preparing the application to Travelers for insurance coverage. Following substantial discovery, defendants moved for summary judgment dismissing the complaint on the grounds that the claim is barred by the statute of limitations, Sils is not vicariously liable for the actions of Kenney because she was not employed by Sils at the time the insurance application was made, there is no privity between Sils and plaintiffs, and Kenney is not individually liable to plaintiffs because she acted solely in the course of her employment with Dolores Buonocore Agency (hereinafter Buonocore). Supreme Court’s denial of then motion prompted this appeal by defendants.
Preliminarily, we conclude that Supreme Court properly entertained defendants’ statute of limitations argument set forth for the first time in their motion for summary judgment. Plaintiffs correctly note that defendants had neither raised the statute of limitations defense in their answer nor moved to dismiss the complaint on that ground pursuant to CPLR 3211
We must, therefore, determine the propriety of Supreme Court’s holding that plaintiffs’ negligence action accrued on the date their claim was rejected by Travelers — resulting in timely commencement of this action — as opposed to the date the policy was issued, as defendants argue, which would render the action time-barred. “The [s]tatute of [l]imitations does not run until there is a legal right to relief. Stated another way, accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint” (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993] [citation omitted]). Inasmuch as “[d]amages are a necessary element of a negligence claim which must be pleaded and proven” (Siler v Lutheran Social Servs. of Metro. N.Y., 10 AD3d 646, 648 [2004]), plaintiffs could not have established any harm until their claim was denied by Travelers. Thus, where, as here, a claim against an insurance agent or broker relating to the failure of insurance coverage sounds in tort, the injury occurred and the plaintiffs were damaged when coverage was denied (see Bond v Progressive Ins. Co., 82 AD3d 1318, 1320-1321 [2011]; see also Venditti v Liberty Mut. Ins. Co., 6 AD3d 961, 962 [2004]; compare Lieberthal v Agency Ins. Brokers, 216 AD2d 816, 817 [1995]). Accordingly, Supreme Court properly determined that plaintiffs’ action was timely.
Turning to the merits, as the movants for summary judgment, defendants bore the initial burden of “mak[ing] a prima facie showing of entitlement to judgment as a matter of law” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In support of their motion, defendants submitted four affidavits which alleged, among other things, that on June 5, 2003, plaintiff called Buonocore, a corporation solely owned and operated by Dolores Buonocore, from whom plaintiff had previously procured insurance. Although Buonocore was primarily devoted to real estate, it would occasionally obtain insurance for customers by submitting their information to other insurance agencies, including Sils, who would obtain quotes from carriers and procure the insurance policy, with Buonocore receiving a share of the commissions paid on the policy and any subsequent renewals. Buonocore
According to the affidavits of Lamonaca and Sils’ owner, Sils relied solely on the information provided by Kenney and Buonocore in procuring the subject policy. The affidavits of Lamonaca, Dolores Buonocore and Kenney further indicated that Sils assumed Buonocore’s insurance portfolio in late July 2003 and that Kenney was hired as an employee of Sils in September 2003. However, Kenney was allegedly not employed by Sils at the time the insurance policy was issued to plaintiff. This evidence was sufficient to meet Sils’ initial burden of establishing that no employment relationship existed between Kenney and Sils at the time plaintiff’s insurance policy was procured (see Cietek v Bountiful Bread of Stuyvesant Plaza, Inc., 74 AD3d 1628, 1629 [2010]) and, therefore, that no privity existed between plaintiff and Sils. Accordingly, the burden shifted to plaintiffs to raise a triable question of fact as to Sils’ liability (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 560 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]).
In his deposition testimony, plaintiff first indicated his belief that he had initially called Kenney at Buonocore, but then testified that he was not certain whether he spoke to Kenney at her old location at Buonocore or at her “new location” with Sils. However, in his affidavit opposing the motion for summary judgment, plaintiff alleged unequivocally that, when he called Kenney, he “was informed that she had moved to a new business and was given a telephone number to call her at Sils.” This evidence creates a classic question of credibility — to be resolved by a trier of fact — as to whether Kenney was employed by Sils or, at the very least, whether a principal-agent relationship existed between Kenney and Sils at the time the insurance policy was
Turning to the denial of Kenney’s motion for summary judgment, Supreme Court held, in part, that “material issues of fact remain in relation to whether . . . Kenney and Sils failed to exercise due care in handling plaintiffs’ insurance transaction.” With respect to Kenney, the complaint alleges that she was negligent in taking down information pertáining to plaintiffs application and in submitting that information to Sils. The affidavits of Kenney and Dolores Buonocore allege that Buonocore instructed Kenney on what information to elicit for homeowner’s insurance applications and to then contact various brokers to obtain quotes. If proven, the evidence establishes, at a minimum, the existence of a principal-agent relationship between Buonocore and Kenney (see Fils-Aime v Ryder TRS, Inc., 40 AD3d at 918). Inasmuch as the tasks of obtaining information from plaintiff and submitting such information to Sils were within the scope of Kenney’s employment/principal-agent relationship with either Buonocore or — as asserted by plaintiffs— with Sils, she cannot be held personally liable therefor (see Ali v Pacheco, 19 AD3d 439, 440 [2005]). Thus, Kenney’s motion for summary judgment should have been granted.
The parties’ remaining contentions have been considered and, to the extent they are properly before us, are either academic or without merit.
Peters, J.P., Kavanagh, Garry and Egan Jr., JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied defendant Karen Kenney’s motion for summary judgment; motion granted to that extent and complaint dismissed against said defendant; and, as so modified, affirmed.
. Travelers also relies on additional errors and/or misrepresentations in the application which it claims were misleading, including, among others, the misspelling of plaintiffs surname, the omission of his wife’s name from the policy, a change in the street address of the property since plaintiffs’ previous coverage as a result of a new 911 numbering system and the location of a fire hydrant.
. Notably, plaintiffs argue that their claim against Sils is not based on a theory of vicarious liability but, rather, upon Sils’ direct negligence in handling the insurance application. Regardless of whether there is an issue of fact as to Sils’ relationship with Kenney, issues of fact clearly exist as to whether Sils was negligent in relying on the information provided by Kenney in submitting the insurance application tó Travelers, providing an alternative ground for the denial of summary judgment to Sils.