PEOPLE CUOMO v. WELLS FARGO INSURANCE SERVICES INC (2009)

Appeal from order, Supreme Court, New York County (Bernard J. Fried, J.), entered January 15, 2008, which, inter alia, granted defendants' motion to dismiss plaintiffs' causes of action for breach of fiduciary duty and fraud under Executive Law § 63(12), deemed to be an appeal from judgment, same court and Justice, entered March 17, 2008 (CPLR 5501[c] ), dismissing, inter alia, the causes of action, and so considered, said judgment unanimously affirmed, without costs.

 The complaint failed to state a cause of action for breach of fiduciary duty and we decline plaintiff's request that we not follow our decision in People v. Liberty Mut. Ins. Co., 52 A.D.3d 378, 861 N.Y.S.2d 294 [2008], where we held, among other things, that an insurance broker may not be liable to its client for breach of fiduciary duty absent a special relationship, which does not exist here (id. at 380, 861 N.Y.S.2d 294;  see also Loevner v. Sullivan & Strauss Agency, Inc., 35 A.D.3d 392, 393, 825 N.Y.S.2d 145 [2006], lv. denied 8 N.Y.3d 808, 834 N.Y.S.2d 88, 865 N.E.2d 1255 [2007] ).   Nor has plaintiff pleaded a cause of action for breach of fiduciary duty based merely on the existence of contingent commissions (see Hersch v. DeWitt Stern Group, Inc., 43 A.D.3d 644, 645, 841 N.Y.S.2d 516 [2007] ).

 The motion court also appropriately determined that the complaint failed to state a cause of action for fraud under Executive Law § 63(12) with sufficient particularity (see e.g. People v. Katz, 84 A.D.2d 381, 384-385, 446 N.Y.S.2d 307 [1982] ).   The complaint fails to allege wrongdoing within the meaning of the statute as contingent commissions are not illegal in this State and disclosure of the commissions was not required as of the time of the conduct alleged in the complaint (see People v. Liberty Mut. Ins. Co., 52 A.D.3d at 379, 861 N.Y.S.2d 294;  Hersch, 43 A.D.3d at 645, 841 N.Y.S.2d 516).   We need not determine whether disclosure is required as a result of a circular letter issued by the Department of Insurance in 2008.