Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered October 8, 2013, which, to the extent appealed from as limited by the briefs, denied plaintiffs’ motion to renew defendant Frank Campo’s motion to dismiss the complaint, affirmed, without costs.
In 2008, defendant Castlepoint Insurance Company issued a *1017homeowner’s policy to plaintiffs Linda Dauria and Thomas Dauria based on an application prepared and submitted on their behalf by defendant broker Frank Campo. After a fire in 2010, Castlepoint rescinded the policy based on its determination that the premises contained a basement apartment, which rendered it a “three family” dwelling as opposed to the “two family” designation listed on the insurance application.
In 2011, plaintiffs commenced this action against Castlepoint for breach of contract, and against Campo for his alleged negligence and breach of contract in failing to procure the proper insurance policy and to properly process plaintiffs’ application for insurance. Campo moved to dismiss for failure to state a cause of action and based on documentary evidence, claiming that he was never advised or had reason to believe that the premises was a three-family dwelling. In opposition, Mr. Dauria stated that in a conversation with Campo after the fire, Campo admitted that he had “messed up,” and that in 2002 an investigator for Allstate, the prior insurer of the premises, had advised Campo that the house was a three-family home. Plaintiffs also cross-moved for summary judgment against Castlepoint and Castlepoint cross-moved for summary judgment against plaintiffs dismissing the complaint.
The motion court granted Campo’s and plaintiffs’ motions for summary judgment, and denied Castlepoint’s motion on the ground that Campo fulfilled his duties to plaintiffs, and Castlepoint failed to meet its prima facie burden of showing its entitlement to rescission as a matter of law. In so ruling, the court found that Castlepoint did not establish that plaintiffs had made a material misrepresentation in the insurance application because three-family dwellings were not listed as an “unacceptable exposure” in Castlepoint’s underwriting guidelines, and the policy did not exclude three-family dwellings from coverage.
Castlepoint appealed. This Court reversed and granted Castlepoint summary judgment (104 AD3d 406 [1st Dept 2013]), holding that the motion court erred in finding that Castlepoint failed to establish the materiality of the misrepresentation that the premises was a two-family dwelling, as opposed to a three family dwelling that did not fit within the policy definition of a “residence premises.”
Plaintiffs did not appeal from the grant of summary judgment as to Campo. However, after our decision in the Castlepoint appeal was issued, plaintiffs moved below to renew Campo’s motion to dismiss. Finding that plaintiffs’ failed to present any new and additional facts not available at time of Campo’s origi*1018nal motion to dismiss the complaint, the motion court deemed the motion to be an untimely motion to reargue based on our decision in the Castlepoint appeal, which did not address the unappealed dismissal of the complaint against Campo. The court further stated that even assuming arguendo that it could consider the motion, plaintiffs’ arguments were without merit.
Although the grant of a dismissal to a codefendant at the appellate level may form the basis of a renewal motion (in the court below) by a nonappealing defendant on the ground of “law of the case” (Spierer v Bloomingdale’s, 59 AD3d 267 [1st Dept 2009], lv denied 13 NY3d 713 [2009]; Koscinski v St. Joseph’s Med. Ctr., 47 AD3d 685 [2d Dept 2008]), this is not a case where two codefendants are so similarly situated that this Court’s order with respect to one defendant directly impacts the other defendant. The issue of Campo’s liability is not identical to the issue of Castlepoint’s liability, and plaintiffs have not shown that the factual or legal basis for the order dismissing the claims against Campo has been overturned (compare Ramos v City of New York, 61 AD3d 51 [1st Dept 2009]).
An insurance broker can be held liable in negligence if he or she does not exercise due care in an insurance brokerage transaction (see Bruckmann, Rosser, Sherrill & Co., L.P. v Marsh USA, Inc., 65 AD3d 865 [1st Dept 2009]). In the order dismissing the claims against Campo, the motion court found that Campo had shown that “no significant dispute exists regarding his lack of duty to [p]laintiffs under the circumstances of this matter.” (2012 NY Slip Op 33670[U], *3 [2012] [internal quotation marks omitted].) The court reasoned that Campo procured the requested insurance for plaintiffs, within a reasonable time, and had no continuing duty to advise plaintiffs to procure additional insurance once this was achieved. Although the dissent states that “[t]he entire premise of [the motion court’s] dismissal of the complaint against Campo was that Campo obtained the requested coverage and thus fulfilled his duty,” in denying renewal the motion court stated that “the issue of the materiality of the misrepresentation regarding the number of families the home was designed to accommodate was not discussed with reference to Campo, and was immaterial to the decision to dismiss the complaint as against [him]” (41 Misc 3d 960, 962 [Sup Ct, Bronx County 2013]).
Significantly, in our decision in the Castlepoint appeal this Court did not find that Campo was in fact responsible for a material misrepresentation in the insurance policy application, and plaintiffs have not shown that the motion court’s exoneration of Campo was based on its now-overturned holding that there was *1019no misrepresentation (see e.g. Estate of Brown v Pullman Group, 60 AD3d 481, 482 [1st Dept 2009], lv dismissed in part, denied in part 13 NY3d 789 [2009]). If, as the dissent finds, material issues of fact exist as to whether Campo failed to fulfill his duty to obtain the requested coverage and whether he made a material misrepresentation in the application, under the circumstances of this case plaintiffs’ remedy was to appeal from the original order granting Campo summary judgment.
We have considered plaintiffs’ other contentions and find them unavailing.
Concur — Tom, J.E, Andrias and DeGrasse, JJ. Acosta and Richter, JJ., dissent in a memorandum