Wied v. New York Central Mutual Fire InsuranceWied v. New York Central Mutual Fire Insurance
Appeal from that part of an order of the Supreme Court (Connor, J.), entered July 28, 1993 in Columbia County, which denied defendant Kenneth J.
Plaintiff was insured by defendant New York Central Mutual Fire Insurance Company (hereinafter NYCM) under an automobile liаbility policy which included, inter alia, $300,000 of general liability coverage and $25,000 of uninsured motorist coverage, and which had been procured through defendant Kenneth J. Mаrtin, Jr., doing business as Ken Martin Associates. While covered, plaintiff was injured in an automobile accident with a third party who had minimum coverage of $10,000, which was paid to plaintiff. Plaintiff submitted a claim to NYCM pursuant to the uninsured motorist coverage provision in her insurance policy and ultimately received an additionаl payment of $25,000.
Subsequently, plaintiff commenced this action against both defendants. The second cause of action in the complaint alleged thаt Martin failed to advise plaintiff of the availability and low cost of supplеmentary uninsured motorist coverage and of the risks against which plaintiff would be protected, and failed to obtain suitable and adequate supplemеntary insurance on plaintiff’s behalf. After answers had been filed by both defendants, Martin moved for summary judgment and plaintiff cross-moved for summary judgment. Supreme Court deniеd Martin’s motion to dismiss plaintiff’s second cause of action, relying on casе law in other States which holds that an insurance agent/broker has an affirmativе duty to advise an insurance customer of the availability of supplementary uninsured motorist coverage where a special relationship exists between the insurance agent/broker and the insurance customer. Martin aрpeals from the order entered on this decision.
In our view, plaintiff’s secоnd cause of action does, not state a cognizable cause оf action. No New York case has gone as far in this respect as the out-of-State cases relied on by Supreme Court. In New York, the duty owed by an insuranсe agent to an insurance customer is ordinarily defined by the nature of the request a customer makes to the agent (see, Rogers v Urbanke,
The out-of-State cases relied on by Supreme Court require the showing of a special relationship between the agent and the customer. Nо such special relationship has been shown by plaintiff here. All plaintiff has averred is that Martin "held himself out to me and to the general public as a prоfessional insurance consultant, skilled in ascertaining the insurance needs of his clients and making appropriate recommendations as to insurance coverage”. The averment falls short of alleging a special relationship. Plaintiff’s second cause of action fails to state a cognizable cause of action under New York law and, therefore, Supreme Court erred in denying Martin’s motion for summary judgment dismissing the second cause of action.
Mercure, J. P., Crew III and White, JJ., concur. Ordered that the order is modified, on the law, with costs to defendant Kenneth J. Martin, Jr., by reversing so much thereof as denied said defendant’s motion for summary judgment dismissing the second cause of action; motion granted to that extent and summary judgment awarded to said defendant dismissing the second cause of action; and, as so modified, affirmed.