KATZ v. Silberstein Brokerage, Inc., appellant. (2006)

In an action, inter alia, to recover damages for negligence in the procurement of insurance coverage, the defendant Silberstein Brokerage, Inc., appeals from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated March 3, 2005, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 An insurance agent or broker may be held liable under a theory of negligence for failing to procure insurance (see Mickey's Rides-N-More v. Anthony Viscuso Brokerage, 17 A.D.3d 328, 329, 792 N.Y.S.2d 570;  Structural Bldg. Prods. Corp. v. Business Ins. Agency, 281 A.D.2d 617, 722 N.Y.S.2d 559;  American Ref-Fuel Co. of Hempstead v. Resource Recycling, 281 A.D.2d 574, 575, 722 N.Y.S.2d 571).   In order for a broker to be held so liable, however, “a plaintiff must demonstrate that the broker failed to discharge the duties imposed by the agreement to obtain insurance, either by proof that it breached the agreement or because it failed to exercise due care in the transaction” (Mickey's Rides-N-More v. Anthony Viscuso Brokerage, supra at 329, 792 N.Y.S.2d 570;  see Structural Bldg. Prods. Corp. v. Business Ins. Agency, supra at 620, 722 N.Y.S.2d 559;  American Ref-Fuel Co. v. Resource Recycling, supra at 575, 722 N.Y.S.2d 571;  Santaniello v. Interboro Mut. Indem. Ins. Co., 267 A.D.2d 372, 700 N.Y.S.2d 230).   In the instant case, the defendant Silberstein Brokerage, Inc., failed to establish its entitlement to judgment as a matter of law insofar as there exists a triable issue of fact as to whether it exercised due care in the transaction.   Accordingly, the cross motion was properly denied.