US PACK NETWORK CORP v. Tanenbaum-Harber Co., Inc., et al., Defendants-Appellants. (2007)

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered November 17, 2005, which, to the extent appealed from as limited by the briefs, denied the motion by defendant insurance brokers Tanenbaum-Harber and Kravitz for summary judgment dismissing the action against them, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed.   The Clerk is directed to enter judgment accordingly.   Appeal from order, same court and Justice, entered March 14, 2006, which, to the extent appealable, denied these defendants' motion to renew, unanimously dismissed, without costs, as academic.

On a previous appeal, this Court affirmed a determination that plaintiff had failed to give the requisite prompt notice of the claimed losses to its insurance broker (see U.S. Pack Network Corp. v. Travelers Prop. Cas., 23 A.D.3d 299, 300, 808 N.Y.S.2d 153 [2005] ).   We specifically held that the affidavit of plaintiff's president stating that the broker was verbally notified shortly after each loss was insufficient even to raise a bona fide issue of fact as to whether there was prompt notice.

That being established, it is irrelevant whether defendant broker breached its agreement with plaintiff by obtaining a policy that failed to provide the full coverage plaintiff sought.   Although, as plaintiff points out, there may be a distinction between the defenses available in a suit on a policy and those which may be interposed in a suit on an agreement to procure a policy (see Kinns v. Schulz, 131 A.D.2d 957, 516 N.Y.S.2d 817 [1987] ), the damages plaintiff claims here as a result of the alleged breach of contract were not caused by the breach of that contract.   They would have been suffered in any event, since even had the broker obtained more inclusive coverage, plaintiff itself failed to provide the timely notice necessary to obtain the benefits.