SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
398
CA 11-01905
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.
SARAH RADFORD, DOING BUSINESS AS DEWITT CELLULAR,
PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
PEERLESS INSURANCE COMPANY, ET AL., DEFENDANTS,
AND LADD’S AGENCY, INC., DEFENDANT-RESPONDENT.
GUSTAVE J. DETRAGLIA, JR., UTICA, FOR PLAINTIFF-APPELLANT.
KEIDEL, WELDON & CUNNINGHAM, LLP, SYRACUSE (LORI A. EATON OF COUNSEL),
FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Oneida County (Anthony
F. Shaheen, J.), entered June 6, 2011. The order granted the motion
of defendant Ladd’s Agency, Inc. for summary judgment dismissing the
amended complaint against it.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this action seeking damages for, inter alia,
breach of contract, plaintiff contends that Supreme Court erred in
granting the motion of defendant Ladd’s Agency, Inc. (Ladd) for
summary judgment dismissing the amended complaint against it. We
reject that contention.
The amended complaint contains claims against Ladd under theories
of negligence, breach of contract, negligent misrepresentation and
breach of fiduciary duty, arising from Ladd’s alleged failure to
procure certain insurance coverage on plaintiff’s behalf. Addressing
first the negligent misrepresentation claim, it is well settled that
“liability for negligent misrepresentation has been imposed only on
those 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 misrepresentation is justified”
(Kimmell v Schaefer, 89 NY2d 257, 263; see Greenberg, Trager & Herbst,
LLP v HSBC Bank USA, 17 NY3d 565, 578; Murphy v Kuhn, 90 NY2d 266,
270). Here, plaintiff does not contend that Ladd possessed unique or
specialized expertise. We conclude that the court properly granted
Ladd’s motion with respect to the negligent misrepresentation and
breach of fiduciary duty claims because Ladd met its initial burden by
establishing that it did not have a special relationship with
plaintiff and that it did not owe a fiduciary duty to plaintiff (see
-2- 398
CA 11-01905
Murphy, 90 NY2d at 270-272; Sawyer v Rutecki, 92 AD3d 1237, ___; see
generally Zuckerman v City of New York, 49 NY2d 557, 562), and
plaintiff failed to raise a triable issue of fact in opposition (see
Obomsawin v Bailey, Haskell & Lalonde Agency, Inc., 85 AD3d 1566,
1567, lv denied 17 NY3d 710; see generally Zuckerman, 49 NY2d at 562).
The court also properly granted those parts of the motion with
respect to the negligence and breach of contract claims against Ladd
because there was no special relationship between plaintiff and Ladd
(see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152, 158,
affg 19 AD3d 1056; Sawyer, 92 AD3d at ___; Obomsawin, 85 AD3d at
1567). Furthermore, plaintiff did not make a specific request for
coverage beyond that which Ladd procured for her (see Obomsawin, 85
AD3d at 1567). Contrary to plaintiff’s contention, her “general
request for [additional] coverage will not satisfy the requirement of
a specific request for a certain type of coverage” (Hoffend & Sons,
Inc., 7 NY3d at 158). Finally, those claims are barred by plaintiff’s
receipt of the amended insurance policy prior to the loss (see Gui’s
Lbr. & Home Ctr., Inc. v Pennsylvania Lumbermens Mut. Ins. Co., 55
AD3d 1389, 1390; Hoffend & Sons, Inc., 19 AD3d at 1057-1058; cf. Page
One Auto Sales, Inc. v Brown & Brown of N.Y., 83 AD3d 1482, 1483).
Entered: March 23, 2012 Frances E. Cafarell
Clerk of the Court