        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

636
CA 13-01675
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


JOHN MAJTAN, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

URBANKE ASSOCIATES, INC., DEFENDANT-APPELLANT.


KEIDEL, WELDON & CUNNINGHAM, LLP, SYRACUSE (STEPHEN C. CUNNINGHAM OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAW OFFICE OF GUSTAVE J. DETRAGLIA, JR., UTICA (MICHELE E. DETRAGLIA
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Herkimer County
(Norman I. Siegel, J.) , entered June 21, 2013. The judgment awarded
plaintiff money damages upon a jury verdict.

     It is hereby ORDERED that the judgment so appealed from is
unanimously vacated and the order dated December 30, 2011 is reversed
on the law without costs, and defendant’s motion for summary judgment
dismissing the complaint is granted.

     Memorandum: On appeal from a judgment that awarded plaintiff
damages in the amount of $181,752.79 following a jury trial, defendant
contends, inter alia, that Supreme Court erred in denying its pretrial
motion for summary judgment dismissing the complaint. We agree. We
note at the outset that, contrary to plaintiff’s contention, the issue
whether the court erred in denying defendant’s motion is reviewable on
this appeal from the final judgment (see CPLR 5501 [a]).

     Plaintiff owned residential property in Little Falls, New York
and purchased homeowner’s insurance for the property through
defendant, his insurance broker. Broome Co-Operative Insurance
Company (Broome) issued a homeowner’s insurance policy to plaintiff
for the period from July 1, 2005 to July 1, 2008 and thereafter
renewed it for the period from July 1, 2008 to July 1, 2011, but
Broome canceled the policy as of November 1, 2008 based on the
nonpayment of premiums. Plaintiff filed a claim with Broome in
September 2009 when the property was damaged by fire, and Broome
denied coverage based on the cancellation of plaintiff’s policy on
November 1, 2008. Plaintiff then commenced this action, alleging that
he relied upon defendant’s representation that his homeowner’s
insurance premium had been paid.

     We agree with defendant that the court erred in denying its
                                 -2-                           636
                                                         CA 13-01675

motion for summary judgment dismissing the complaint, the gravamen of
which is a claim for negligent misrepresentation. An essential
element of such a claim is the “duty to use reasonable care to impart
correct information due to a special relationship between the parties”
(Fleet Bank v Pine Knoll Corp., 290 AD2d 792, 795). A special
relationship may arise from “a course of dealing over an extended
period of time which would have put objectively reasonable insurance
agents on notice that their advice was being sought and specially
relied on” (Murphy v Kuhn, 90 NY2d 266, 272). According to plaintiff,
he had a special relationship with defendant based on a course of
dealing. We conclude that defendant met its burden on the motion, and
plaintiff failed to raise an issue of fact concerning the existence of
a special relationship (see generally Zuckerman v City of New York, 49
NY2d 557, 562). The interactions between plaintiff and defendant on
which plaintiff relies “ ‘would [not] have put [an] objectively
reasonable insurance agent[] on notice that [his or her advice] was
being sought and specially relied on’ ” (Sawyer v Rutecki, 92 AD3d
1237, 1238, lv denied 19 NY3d 804, quoting Murphy, 90 NY2d at 272),
such that a special relationship was formed based on a course of
conduct. Defendant therefore cannot be held liable for negligent
misrepresentation based on its agent’s response to an inquiry from
plaintiff concerning whether his policy premium had been paid. In
view of our determination, we do not consider defendant’s remaining
contentions.




Entered:   June 20, 2014                       Frances E. Cafarell
                                               Clerk of the Court
