SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

636 

CA 13-01675 

PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ. 

 

JOHN MAJTAN, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

URBANKE ASSOCIATES, INC., DEFENDANT-APPELLANT.

 

KEIDEL, WELDON & CUNNINGHAM, LLP, SYRACUSE (STEPHEN C. CUNNINGHAM OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

LAW OFFICE OF GUSTAVE J. DETRAGLIA, JR., UTICA (MICHELE E. DETRAGLIA

OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

Appeal from a judgment of the Supreme Court, Herkimer County

(Norman I. Siegel, J.) , entered June 21, 2013. The judgment awarded

plaintiff money damages upon a jury verdict. 

It is hereby ORDERED that the judgment so appealed from is

unanimously vacated and the order dated December 30, 2011 is reversed

on the law without costs, and defendant’s motion for summary judgment

dismissing the complaint is granted. 

Memorandum: On appeal from a judgment that awarded plaintiff

damages in the amount of $181,752.79 following a jury trial, defendant

contends, inter alia, that Supreme Court erred in denying its pretrial

motion for summary judgment dismissing the complaint. We agree. We

note at the outset that, contrary to plaintiff’s contention, the issue

whether the court erred in denying defendant’s motion is reviewable on

this appeal from the final judgment (see CPLR 5501 [a]).

Plaintiff owned residential property in Little Falls, New York

and purchased homeowner’s insurance for the property through

defendant, his insurance broker. Broome Co-Operative Insurance

Company (Broome) issued a homeowner’s insurance policy to plaintiff

for the period from July 1, 2005 to July 1, 2008 and thereafter

renewed it for the period from July 1, 2008 to July 1, 2011, but

Broome canceled the policy as of November 1, 2008 based on the

nonpayment of premiums. Plaintiff filed a claim with Broome in

September 2009 when the property was damaged by fire, and Broome

denied coverage based on the cancellation of plaintiff’s policy on

November 1, 2008. Plaintiff then commenced this action, alleging that

he relied upon defendant’s representation that his homeowner’s

insurance premium had been paid. 

We agree with defendant that the court erred in denying its
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CA 13-01675 

motion for summary judgment dismissing the complaint, the gravamen of

which is a claim for negligent misrepresentation. An essential

element of such a claim is the “duty to use reasonable care to impart

correct information due to a special relationship between the parties”

(Fleet Bank v Pine Knoll Corp., 290 AD2d 792, 795). A special

relationship may arise from “a course of dealing over an extended

period of time which would have put objectively reasonable insurance

agents on notice that their advice was being sought and specially

relied on” (Murphy v Kuhn, 90 NY2d 266, 272). According to plaintiff,

he had a special relationship with defendant based on a course of

dealing. We conclude that defendant met its burden on the motion, and

plaintiff failed to raise an issue of fact concerning the existence of

a special relationship (see generally Zuckerman v City of New York, 49

NY2d 557, 562). The interactions between plaintiff and defendant on

which plaintiff relies “ ‘would [not] have put [an] objectively

reasonable insurance agent[] on notice that [his or her advice] was

being sought and specially relied on’ ” (Sawyer v Rutecki, 92 AD3d

1237, 1238, lv denied 19 NY3d 804, quoting Murphy, 90 NY2d at 272),

such that a special relationship was formed based on a course of

conduct. Defendant therefore cannot be held liable for negligent

misrepresentation based on its agent’s response to an inquiry from

plaintiff concerning whether his policy premium had been paid. In

view of our determination, we do not consider defendant’s remaining

contentions.

Entered: June 20, 2014 Frances E. Cafarell

Clerk of the Court