776 South Orange Avenue, Inc. v. Phoenix Insurance

Judgment, Supreme Court, New York County, entered on March 3, 1972, dismissing the complaint as to all defendants, unanimously modified, on the law, so as to reinstate the complaint as to defendant Rudges & Company only, and otherwise affirmed, without costs and without disbursements. In our view the evidence established a prima facie case against the insurance broker, defendant-respondent Rudges & Company. Plaintiff-appellant has shown sufficient facts to indicate a course of conduct by Rudges & Company that lulled appellant into a false sense of security, caused appellant to continue its renovations and improvements of the insured premises, all leading to the inaugural opening of its restaurant. (Cf. Joseph, Inc. v. Alberti, Ca/rleton <& Co., 255 App. Div. 115, affd. 251 N. Y. 580; MacDonald v. Carpenter & Pelton, 31 A D 2d 952.) Appellant is entitled to a determination on the merits of its claim that Rudges & Company continuously misrepresented the status of appellant’s fire insurance coverage, causing appellant to act to its detriment, not only with respect to the physical premises, but also with respect to seeking insurance coverage elsewhere. (See Joseph, Inc. v. Alberti, Ca/rleton & Go., Inc., supra.) In holding that a prima facie case had been made out, we neither indicate nor express any opinion whatsoever on the ultimate disposition of the case on the merits. Concur — Nunez, J. P., Kupferman, Lane, Tilzer and Capozzoli, JJ.