730 LLC v. FILLMORE AGENCY INC (2005)

In an action, inter alia, to recover damages for negligence in procuring insurance coverage, the plaintiff appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated March 17, 2004, which granted those branches of the separate motions of the defendants Fillmore Agency, Inc., and Kerwick & Curran, Inc., of New Jersey which were for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs.

In support of those branches of their separate motions which were for summary judgment dismissing the complaint insofar as asserted against them, the defendants Fillmore Agency, Inc., and Kerwick & Curran, Inc., of New Jersey demonstrated their entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   The movants provided evidence showing that even if they negligently failed to procure the particular insurance coverage that the plaintiff had requested and, thus, were required to pay the plaintiff what it would have received from its insurance company had the requested insurance policy been issued (see American Ref-Fuel Co. of Hempstead v. Resource Recycling, 281 A.D.2d 574, 722 N.Y.S.2d 571;  Andriaccio v. Borg & Borg, 198 A.D.2d 253, 603 N.Y.S.2d 528), they would not have to pay the plaintiff any damages, as the plaintiff's insurable interest under that policy would have been extinguished (see Melino v. National Grange Mut. Ins. Co., 213 A.D.2d 86, 630 N.Y.S.2d 123;  Sportsmen's Park v. New York Prop. Ins. Underwriting Assn., 97 A.D.2d 893, 470 N.Y.S.2d 456, affd. 63 N.Y.2d 998, 483 N.Y.S.2d 1012, 473 N.E.2d 262;  Moke Realty Corp. v. Whitestone Sav. & Loan Assn., 82 Misc.2d 396, 370 N.Y.S.2d 377, affd. 51 A.D.2d 1005, 382 N.Y.S.2d 289, affd. 41 N.Y.2d 954, 394 N.Y.S.2d 881, 363 N.E.2d 587;  Coppotelli v. Insurance Co. of N. Am., 631 F.2d 146).   Since, in response, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718), the court correctly granted those branches of the motions which were for summary judgment dismissing the complaint insofar as asserted against the respondents.

The plaintiff's remaining contentions are without merit.