GARNERVILLE HOLDING COMPANY INC v. KAYE INSURANCE ASSOCIATES INC (2003)

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered February 5, 2003, which, upon the grant of reargument, inter alia, denied so much of defendant's previously granted motion to dismiss the complaint as sought dismissal of plaintiff's cause of action for breach of contract and reinstated that cause, but otherwise adhered to the court's prior determination, unanimously modified, on the law, to grant defendant's motion with respect to the breach of contract cause of action, and otherwise affirmed, with costs to defendant payable by plaintiff.   Appeal from order, same court and Justice, entered May 7, 2002, granting defendant's motion to dismiss the complaint, unanimously dismissed, as superseded by the appeal from the subsequent order, without costs.   The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Plaintiff sustained flood-related losses exceeding the limits of its flood coverage under the policy obtained for it by defendant insurance broker and now sues defendant in both tort and contract alleging that it failed to advise it properly respecting the amount of flood coverage to acquire.   The complaint, however, should be dismissed in its entirety.   No special relationship between the parties has been alleged that would support plaintiff's claim that defendant broker was under a common-law duty to advise it as to the amount of coverage it would be prudent to obtain and, in the absence of any allegation that plaintiff specifically requested coverage in an amount greater than that obtained by defendant or that it was expressly or impliedly agreed that defendant would undertake to provide risk management services to plaintiff, plaintiff has no cause of action against defendant for breach of contract (see Murphy v. Kuhn, 90 N.Y.2d 266, 272-273, 660 N.Y.S.2d 371, 682 N.E.2d 972).