C&C Operating, Inc., Plaintiff, v. ALLIANCE COMMERCIAL PAT MITCHELL AGENCY PAT MITCHELL AGENCY LLC AND PATRICIA MITCHELL (2026)

Defendants Pat Mitchell Agency, Pat Mitchell Agency, LLC, and Patricia Mitchell (the "Mitchell Defendants") move to dismiss the complaint pursuant to CPLR 3211 (a) (7), CPLR § 3013, 3016, and 3024 (a).

The following papers were read and considered in connection with the Mitchell Defendants' motion:

PAPERS NYSCEF Doc. Nos.

Notice of Motion/Affirmation in Support/Exhibits A-C/ 5-10

Memorandum of Law in Support

Memorandum of Law in Opposition 15

Reply Affirmation/Reply Memorandum of Law 16-17

FACTUAL AND PROCEDURAL BACKGROUND

On March 24, 2026, plaintiff commenced this action by filing a summons and complaint, alleging five causes of action.¹ The only causes of action alleged against the Mitchell Defendants are the third, fourth, and fifth causes of action.

The complaint alleges that plaintiff does business under the name Emma's Ale House at 68 Gedney Way, White Plains, New York. Plaintiff alleges that prior to May 10, 2023, it engaged Mitchell to advise on procuring an insurance policy that would adequately cover the risk of loss in the operation of its business. Plaintiff alleges that Mitchell recommended, warranted, represented and advised that it should procure an insurance policy covering the period May 10, 2023, through May 10, 2024, written by defendant AAIC (the "Policy"), and that it relied upon Mitchell's recommendations, warranties and representations that the Policy would adequately cover the risk of loss in the operation of its business and procured the Policy (NYSCEF Doc. No. 1).

The complaint alleges that on November 7, 2023, plaintiff suffered "an event in the kitchen at the Premises" (NYSCEF Doc. No. 1, ¶ 17). Plaintiff alleges that it filed a claim, but that defendants AAIC and Alliance disclaimed coverage.

The complaint alleges that plaintiff was led to believe by Mitchell that the Policy would cover "a loss such as the loss that occurred as a result of the kitchen fire at the Premises" (NYSCEF Doc. No. 1, ¶ 15). Plaintiff alleges that it would not have procured the Policy if it had known that it would not cover this loss (NYSCEF Doc. No. 1).

In its third cause of action, plaintiff alleges a cause of action for breach of contract against Mitchell. Plaintiff alleges, inter alia, that to the extent that its loss is declined or otherwise not satisfied by the Coverage Defendants, Mitchell breached its contractual obligations to plaintiff by failing to properly advise it regarding the coverage provisions that it should procure to adequately cover the risks of loss in the operation of its business (NYSCEF Doc. No. 1).

In its fourth cause of action, plaintiff alleges a cause of action for negligence against Mitchell. Plaintiff alleges that Mitchell owed a duty to recommend insurance coverage that would meet its needs. Plaintiff alleges that if the Policy does not cover the loss, then the loss is a result of Mitchell's negligence (NYSCEF Doc. No. 1).

In its fifth cause of action, plaintiff alleges an additional cause of action for negligence against Mitchell. Plaintiff alleges that it asked Mitchell what it should do, and Mitchell advised that the damage to the floor and the resulting loss and/or expense was covered by the Policy; that Mitchell advised that it should proceed with the necessary repairs; that it relied upon Mitchell's advice and representation that the damage was covered by the Policy, and that Mitchell knew that it relied upon such representations. Plaintiff submits that if the Coverage Defendants are found not liable for the cost of the repairs, then Mitchell, acting as plaintiff's agent, was negligent in representing same to plaintiff and is liable for those costs (NYSCEF Doc. No. 1).

The Mitchell Defendants move to dismiss the complaint. Their arguments are summarized as follows: (1) the complaint fails, because there was no specific request for the coverage/policy at issue (NYSCEF Doc. No. 10); (2) a duty to advise a customer of the kinds of insurance it should purchase is a negligent misrepresentation claim and must be pleaded as such; (3) the complaint does not plead a special relationship, which is one of the elements of a claim for negligent misrepresentation (NYSCEF Doc. No. 10); (4) even the limited duty that a broker owes an insured ends once a policy is issued; (5) an insurance policy is a contract between the policyholder and the insurer, not the broker; only AAIC had the right and ability to pay or deny the claim, which negates the element of proximate cause as to any claims against them (NYSCEF Doc. No. 10); (6) the complaint is not compliant with the pleading standards required by the CPLR (NYSCEF Doc. No. 10); (7) the within action is frivolous pursuant to 22 NYCRR § 130-1.1; and (8) Mitchell is a licensed insurance broker, not an agent (NYSCEF Doc. No. 6).

Plaintiff makes several arguments in opposition. Its arguments are summarized as follows: (1) the Mitchell Defendants' argument that it made no specific request is fact bound and premature; whether it requested or reasonably relied on the broker to procure coverage suited to its restaurant operations, and whether the broker advised or represented that such coverage would respond, are questions for discovery; (2) the Mitchell Defendants' argument about specific requests does not negate as a matter of law its allegations of broker default, advisory undertakings, or representations tied to the placement and loss; (3) the complaint's allegations regarding the broker's role in procuring the policy, advising before and after the loss, and making representations about coverage provide sufficient particulars so as to place the Mitchell Defendants on notice of a negligent misrepresentation claim; (4) while the ultimate claim payment is the insurer's contractual function, that does not foreclose liability where a broker's pre-loss procurement and advisory undertakings, as well as pre- or post-loss representations about coverage, allegedly misled the insured or resulted in the absence of coverage reasonably associated with the insured's restaurant operations; the complaint permits fact development on whether the Mitchell Defendants undertook advisory responsibilities and made material statements about coverage scope; whether post-issuance conduct created or breached duties is a mixed question of law and fact; and (5) the complaint satisfies the CPLR's particularity requirement and provides adequate notice of its claims. Plaintiff submits that to the extent that the Court deems any claim to be imprecise, it should be permitted to replead, rather than suffer dismissal (NYSCEF Doc. No. 15).

The Mitchell Defendants' arguments in reply are summarized as follows: (1) plaintiff's opposition does not address most of their arguments (NYSCEF Doc. No. 17); (2) duty and scope of duty are questions of law that can only be decided by the Court and can be resolved on the pleadings (NYSCEF Doc. No. 17); (3) there is no need to conduct discovery regarding what plaintiff asked the broker to procure, because it already has the requisite personal knowledge (NYSCEF Doc. No. 17); and (4) if plaintiff fails to amend the complaint as of right, and they are forced to have this motion decided by the Court, they are entitled to an award of attorney's fees, costs and expenses pursuant to 22 NYCRR § 130-1.1 (NYSCEF Doc. No. 16).

ANALYSIS

CPLR 3211(a) provides, in relevant part, that: "A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: . . . 7. the pleading fails to state a cause of action."

On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory . . . In assessing a motion under CPLR 3211 (a) (7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and 'the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one'.

(Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]). The facts alleged in such affidavits must also be assumed to be true (Gawrych v Astoria Fed. Sav. & Loan, 148 AD3d 681, 683 [2d Dept 2017]). However, "bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true" (id.; Cruciata v O'Donnell, 149 AD3d 1034, 1035 [2d Dept 2017]).

"An insurance agent or broker can be held liable in negligence if he or she fails to exercise due care in an insurance brokerage transaction. Thus, a plaintiff may seek to hold a defendant broker liable under a theory of either negligence or breach of contract" (Broecker v Conklin Property, LLC, 189 AD3d 751, 753 [2d Dept 2020]).

"An insurance agent or broker has a common-law duty to obtain requested coverage for a client within a reasonable amount of time, or to inform the client of the inability to do so. Generally, [t]o 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. Thus, the duty is defined by the nature of the client's request (Copacabana Realty, LLC v A.J. Benet, Inc., 199 AD3d 633, 634 [2d Dept 2021] [internal quotation marks omitted]). "A general request for coverage will not satisfy the requirement of a specific request for a certain type of coverage" (Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152, 158 [2006]).

"However, [w]here a special relationship develops between the broker and client, the broker may be liable, even in the absence of a specific request, for failing to advise or direct the client to obtain additional coverage" (Copacabana Realty, LLC at 634 [internal quotation marks omitted]).

"In exceptional circumstances a cause of action for negligent misrepresentation exists where there is a special relationship between the customer and the insurance broker and the customer reasonably relies upon the broker's representations" (Houston Casualty Company v Cavan Corporation of NY, 161 AD3d 427, 428 [1st Dept 2018]). "On a cause of action alleging negligent misrepresentation, the plaintiff is required to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information" (Ginsburg Development Companies, LLC v Carbone, 134 AD3d 890, 894 [2d Dept 2015] [internal quotation marks omitted]).

"A special relationship may be established by persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent representation is justified" (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 180 [2011]).

Here, the Mitchell Defendants have demonstrated that the third and fourth causes of action against them should be dismissed on the grounds that the complaint fails to allege that plaintiff made a specific request to the Mitchell Defendants for the coverage that was not provided by the Policy or that there was a special relationship between them above and beyond the ordinary broker-client relationship.

The Mitchell Defendants have also demonstrated that the fifth cause of action against them, whether it is considered a cause of action for negligence or negligent representation, should be dismissed for the same reasons.

Although plaintiff seeks leave to replead, it did not move by cross-motion. Affirmative relief may not be granted in opposition (Fried v Jacob Holding, Inc., 110 AD3d 56, 64 [2d Dept 2013] ["Given the language of CPLR 2215, and the contexts in which it is applicable, the most reasonable interpretation of the statute is that a party seeking relief in connection with another party's motion is, as a general rule, required to do so by way of a cross motion"]). In any case, plaintiff failed to demonstrate that leave to replead is warranted. In that regard, plaintiff failed to demonstrate that it would be able to state any viable causes of action upon repleading and failed to submit any amendments to cure the present deficiencies (see i.e. Lupski v County of Nassau, 32 AD3d 997, 999 [2d Dept 2006] ["Finally, the Supreme Court providently exercised its discretion in denying the plaintiff's cross motion pursuant to CPLR 3211 (e) for leave to replead since she did not submit a copy of the proposed new pleading and did not demonstrate that the proposed amendment had merit"]; State ex rel. Light v Melamed, 181 AD3d 498, 499 [1st Dept 2020] [same]).

Finally, plaintiff has not demonstrated that "discovery might reveal the existence of facts, within the [D]efendants' control, which would warrant the denial of the motion" (Lipton v Unumprovident Corp., 10 AD3d 703, 706 [2d Dept 2004]; see also Karpovich v City of New York, 162 AD3d 996, 998 [2d Dept 2018] ["the mere hope that discovery may reveal facts essential to justify opposition 'does not warrant denial of the motion' "). Since plaintiff already has the requisite personal knowledge about whether it made a specific request and/or whether it has a special relationship with the Mitchell Defendants, it does not need discovery to discover facts it already has in its possession.

However, the Mitchell Defendants' request for attorney's fees and costs pursuant to 22 NYCRR § 130-1.1, sought for the first time in reply, is denied.

Accordingly, the Mitchell Defendants' motion to dismiss the complaint is granted.

The Court has considered the remaining arguments and finds them to be without merit.

CONCLUSION

Accordingly, it is hereby

ORDERED, that the Mitchell Defendants' motion to dismiss the complaint is GRANTED.

The foregoing constitutes the Decision and Order of this Court.

Dated: White Plains, New York

September 11, 2026

ENTER:

HON. WALTER RIVERA, J.S.C.

FOOTNOTES

1.   The first two causes of action relate solely to the remaining defendants, American Automobile Insurance Company ("AAIC") and Alliance Commercial ("Alliance", collectively the "Coverage Defendants").

Walter Rivera, J.