Hersch v. DeWitt Stern Group, Inc.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered February 21, 2007, which, to the extent appealed from, denied defendant’s motion for summary judgment dismissing the complaint, modified, on the law, to grant the motion with respect to the third, fourth, fifth, sixth and seventh causes of action, and otherwise affirmed, without costs. The court properly denied defendant’s motion for summary judgment insofar as it sought dismissal of plaintiffs first two causes of action sounding, respectively, in negligence and breach of contract, and alleging that defendant, an insurance brokerage firm, failed to procure adequate insurance for plaintiff. There are triable issues as to whether plaintiff specifically requested additional coverage for the “additions and alter 645 ations” to his cooperative apartment, which was damaged in a fire in November 2004 (see Murphy v Kuhn, 90 NY2d 266 [1997]). Although plaintiff admittedly received and read the policy procured by defendant brokerage, he was allegedly assured that the requested coverage had been obtained and he had “a right to look to the expertise of [his] broker with respect to insurance matters” (Baseball Off. of Commr. v Marsh & McLennan, 295 AD2d 73, 82 [2002]). Plaintiff’s cause of action for breach of fiduciary duty, however, should have been dismissed. Although the parties’ relationship lasted a considerable period of time and defendant assured plaintiff that his insurance needs were being met, these circumstances are not so exceptional as to support imposition of a fiduciary duty upon defendant (see Busker on Roof Ltd. Partnership Co. v Warrington, 283 AD2d 376, 377 [2001]). Plaintiffs fourth through seventh causes of action, which are based on allegations that the existence of a contingent commission agreement between defendant and the company that issued the subject insurance policy should have been disclosed to him, should have been dismissed as well. Contingent commission agreements between brokers and insurers are not illegal (see Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878 [1985]), and, in the absence of a special relationship between the parties, defendant had no duty to disclose the existence of the contingent commission agreement (see Wender v Gilberg Agency, 304 AD2d 311, 311-312 [2003], lv denied 100 NY2d 507 [2003]). We have considered defendants’ remaining arguments and find them unavailing. Concur—Tom, J.P, Mazzarelli, Andrias and Williams, JJ.