SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

678 

CA 12-02300 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND VALENTINO, JJ.

 

 

5 AWNINGS PLUS, INC., FORMERLY KNOWN AS PORTAGE 

HOUSE MOTEL, INC., PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

MOSES INSURANCE GROUP, INC., DEFENDANT-APPELLANT.

 

KEIDEL, WELDON & CUNNINGHAM, LLP, SYRACUSE (DARREN P. RENNER OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

ROSCETTI & DECASTRO, P.C., NIAGARA FALLS (JAMES C. ROSCETTI OF

COUNSEL), FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Niagara County

(Catherine Nugent Panepinto, J.), entered February 17, 2012. The

order denied the motion of defendant to dismiss the complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion is granted,

and the complaint is dismissed. 

Memorandum: Defendant, who was the insurance agent for nonparty

Awnings Plus, Inc. (API), procured workers’ compensation insurance for

API through the New York State Insurance Fund (NYSIF). After

plaintiff purchased some of the assets of API, API ceased doing

business and defendant offered to procure workers’ compensation

insurance for plaintiff. According to plaintiff, defendant advised

plaintiff to execute an assignment of interest agreement transferring

the NYSIF workers’ compensation policy from API to plaintiff. 

Unbeknownst to plaintiff, API owed premiums on the NYSIF policy in the

amount of $12,000 and, in July 2009, NYSIF commenced an action against

plaintiff seeking to collect the monies due from API. Plaintiff

ultimately paid $11,061.24 to NYSIF. Plaintiff thereafter commenced

this breach of contract and negligence action in November 2011 seeking

to recover from defendant the monies it paid to NYSIF. Plaintiff

asserted that defendant prepared the assignment of API’s insurance

policy, that defendant knew or should have known at that time that API

owed premiums on the assigned policy, and that defendant should have

“advise[d] plaintiff of the implications of the assignment.” 

Defendant moved to dismiss the complaint, and Supreme Court denied the

motion. 

We agree with defendant that the court erred in denying that part

of the motion to dismiss the negligence cause of action on statute of
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CA 12-02300 

limitations grounds. It is well settled that a cause of action

accrues “when all [of] the facts necessary to the cause of action have

occurred and an injured party can obtain relief in court” (Ackerman v

Price Waterhouse, 84 NY2d 535, 541). “In most cases, this accrual

time is measured from the day an actionable injury occurs, ‘even if

the aggrieved party is then ignorant of the wrong or injury’ ” (McCoy

v Feinman, 99 NY2d 295, 301, quoting Ackerman, 84 NY2d at 541; see

Brooks v AXA Advisors, LLC [appeal No. 2], 104 AD3d 1178, 1180, lv

denied ___ NY3d ___ [June 25, 2013]). Here, the injury to plaintiff,

i.e., plaintiff’s financial responsibility for API’s debt, occurred on

April 3, 2007, which is the date that it executed the assignment. As

plaintiff acknowledges in the complaint, API “owed money on th[e]

policy at the time the assignment was executed” (emphasis added). The

assignment provides that, “upon the acceptance of th[e] agreement,”

i.e., April 3, 2007, the “assignee agrees to . . . assume all

obligations [in the policy] . . . , including liability and

responsibility for the payment of any premiums or additional

premiums.” Thus, by signing the assignment, plaintiff became

responsible for monies API owed on the policy and therefore sustained

an actionable injury on the date it executed the assignment (see

generally McCoy, 99 NY2d at 305). In other words, upon the execution

of the assignment, which shifted liability for arrears in policy

premiums from API to plaintiff, plaintiff’s damages were “sufficiently

calculable to permit plaintiff to obtain prompt judicial redress of

that injury” and plaintiff therefore had a “complete cause of action”

(id.).

The fact that plaintiff may not have learned of the amount owed

until July 2009, i.e., the date on which NYSIF commenced the action

against it, does not alter the analysis for statute of limitations

purposes (see Kronos, Inc. v AVX Corp., 81 NY2d 90, 94; see also One

Beacon Ins. v Terra Firma Constr. Mgt. & Gen. Contr., LLC, 2004 WL

369273, at *3). Thus, plaintiff’s negligence cause of action is

barred by the three-year statute of limitations set forth in CPLR 214,

and the court erred in denying that part of the motion to dismiss that

cause of action (see generally Cappelli v Berkshire Life Ins. Co., 276

AD2d 458, 459).

We further agree with defendant that the court erred in denying

that part of its motion to dismiss the breach of contract cause of

action because plaintiff failed to state a claim upon which relief may

be granted. “ ‘[A]n insurance agent’s duty to its customer is

generally defined by the nature of the customer’s request for

coverage’ ” (Obomsawin v Bailey, Haskell & LaLonde Agency, Inc., 85

AD3d 1566, 1567, lv denied 17 NY3d 710). “ ‘Absent a specific request

for coverage not already in a client’s policy or the existence of a

special relationship with the client, an insurance agent or broker has

no continuing duty to advise, guide[ ] or direct a client to obtain

additional coverage’ ” (id.; see Murphy v Kuhn, 90 NY2d 266, 270). 

“To set forth a case for negligence or breach of contract against an

insurance broker, a plaintiff must establish that a specific request

was made to the broker for the coverage that was not provided in the

policy” (American Bldg. Supply Corp. v Petrocelli Group, Inc., 19 NY3d

730, 735, rearg denied 20 NY3d 1044). “A general request for coverage
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CA 12-02300 

will not satisfy the requirement of a specific request for a certain

type of coverage” (Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d

152, 158; see Radford v Peerless Ins. Co., 93 AD3d 1354, 1355;

Catalanotto v Commercial Mut. Ins. Co., 285 AD2d 788, 790, lv denied

97 NY2d 604; M & E Mfg. Co. v Frank H. Reis, Inc., 258 AD2d 9, 12;

Empire Indus. Corp. v Insurance Cos. of N. Am., 226 AD2d 580, 581). 

Here, plaintiff requested only that defendant procure the “best

policy value” for plaintiff’s workers’ compensation coverage. This is

“the very kind of request that has been repeatedly held to be

insufficient” to trigger a special duty requiring defendant to advise

plaintiff concerning its insurance coverage (Catalanotto, 285 AD2d at

790). Defendant procured workers’ compensation coverage for plaintiff

through the assignment of API’s policy. As noted above, the

assignment itself indicated that plaintiff would be responsible “for

the payment of any premiums or additional premiums . . . which may

become due on account of this policy up to the effective date of this

assignment of interest agreement.” Plaintiff has thus failed to state

a breach of contract cause of action because there was no specific

request for coverage that defendant failed to meet (see generally

American Bldg. Supply Corp., 19 NY3d at 735).

We therefore reverse the order, grant defendant’s motion, and

dismiss the complaint.

Entered: July 19, 2013 Frances E. Cafarell

Clerk of the Court