GIBRALTAR CONTRACTING INC v. NORTHEAST BROKERAGE INC PF (2020)

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered July 10, 2020, which denied defendant insurance broker's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

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 N.Y.3d 730, 735, 955 N.Y.S.2d 854, 979 N.E.2d 1181 [2012] ).  Issues of fact are presented by the parties' conflicting testimony as to their expectations with respect to obtaining insurance coverage, the contents of the parties' October 14, 2015 recorded telephone conversation, in which plaintiff sought clarity that the heights limitation constituted a limitation on exterior work, and the exclusion contained in the insurance proposal, which was not the full exclusion.  The policies, which did contain the full exclusion precluding the use of any scaffold, were not forwarded to plaintiff until four months after renewal.  While the failure to read the policy may provide a basis for comparative negligence (id. at 737, 955 N.Y.S.2d 854, 979 N.E.2d 1181), the facts of this case preclude summary judgment.