Opinion
13-0396
08-19-2015
Eznic Karakashian and Margo Sappington, Plaintiffs, v. Peter Fingar Agency, Inc., d/b/a Fingar Insurance and NYCM Holdings, Inc. d/b/a New York Central Mutual Fire Insurance Company, Defendants.
Appearances: Sarah A. Adam, Esq. Counsel for Plaintiff Clark Guldin, Attorneys at Law 242 West 36th Street, 9th Floor New York, New York 10018 Frederick M. Klein, Esq. Counsel for Defendant, movant Peter Finger Agency, Inc. Sullivan & Klein, LLP 980 Avenue of the Americas, Suite 405 New York, New York 10018
Appearances: Sarah A. Adam, Esq. Counsel for Plaintiff Clark Guldin, Attorneys at Law 242 West 36th Street, 9th Floor New York, New York 10018 Frederick M. Klein, Esq. Counsel for Defendant, movant Peter Finger Agency, Inc. Sullivan & Klein, LLP 980 Avenue of the Americas, Suite 405 New York, New York 10018 Lisa M. Fisher, J.
This matter was transferred to this Court from Supreme Court (Elliott, III, J.) which denied Defendant Peter Finger Agency, Inc.'s (hereinafter "Defendant") motion for summary judgment on April 27, 2015. The current application is one for reargue under CPLR R. 2221 (a) and (d), which seeks an order pursuant to CPLR R. 3212 dismissing the First, Second, and Third Causes of Action of the Amended Complaint.
Defendant contends that there are no triable issues of fact as to Plaintiffs' specific requests, which were memorialized in the application signed by Plaintiff Eznic Karakashian (hereinafter "Eznic") and the New York Central Mutual Insurance Company (hereinafter "NYCM") policy. Defendant further contends that there are no triable issue of fact as to whether a special relationship developed and, even if a finder of fact were to make such determination, there are no additional duties pursuant to such a relationship that could arise that Defendant did not fulfil.
Plaintiffs' oppose the application, arguing that Defendant's application is improper as Supreme Court did not overlook "significant facts or misapplied the law in its original decision." (emphasis removed.) Plaintiffs also point out that Defendant did not indicate what facts were "overlooked or misapprehended" by Supreme Court which resulted in the issuance of a mistaken decision. Notwithstanding, Plaintiffs contend that any facts that may have been incorrectly stated by Supreme Court in its Decision and Order would have no possible effect on the Court's finding of an issue of fact. Furthermore, Plaintiffs claim that Defendant's current motion mirrors the prior motion, including the same misrepresentations of controlling case law, which is not proper in a motion to reargue.
Defendant submits a reply, pointedly arguing that Plaintiffs admitted they knew the coverage was not sufficient but they were bound by the statement in the signed application which provided, inter alia, that there was no coverage for a building which was used for business. Further, Defendant argues that the misapprehensions of fact by Supreme Court were not minor, and were significant errors which warrant a different outcome to Defendant's motion.
Motions affecting a prior order are governed by CPLR R. 2221. "It is well settled that a motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision." (Loris v S & W Realty, Corp., 16 AD3d 729, 730 [3d Dept 2005], quoting Peak v Northway Travel Trailers Inc., 260 AD2d 840, 841 [3d Dept 1999].) Specifically, a motion for leave to reargue shall be 1) identified as such, 2) "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion," and 3) be made within 30 days after service of notice of entry. (CPLR R. 2221 [d]; see Matter of Town of Poestenkill v New York State Dept. of Envtl. Conservation, 229 AD2d 650. 651 [3d Dept 1996] ["A motion to reargue is premised upon the theory that the court has overlooked significant facts or misapplied the law in its original decision."] [emphasis added]; Smith v Town of Plattekill, 274 AD2d 900, 901 [3d Dept 2000] [calling such requirements as "necessary elements of such a motion."]; see also Spa Realty Assoc. v Springs Assoc., 213 AD2d 781 [3d Dept 1995].) A motion to reargue "is not designed to afford an unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted." (Mayer v National Arts Club, 192 AD2d 863, 865 [3d Dept 1993].)
Here, the Court's review of both of Defendant's motions demonstrate they are almost the exact same motion, with the same arguments, and only distinguished in that the second motion weaves in excerpts of Supreme Court's prior Decision and Order. What Defendant argues as overlooked or misapprehended facts in the second motion are still the same points and facts from the first motion but couched in terms of a motion to reargue. Thus, the Court believes this application is outside the guise of CPLR R. 2221 (d).
Notwithstanding, it cannot be said that Supreme Court mistakenly arrived at its earlier decision. (See Loris, 16 AD3d at 730; Peak, 260 AD2d at 841.) The deposition of Plaintiff Eznic established that Plaintiffs solicited Defendant for insurance coverage which would satisfy their mortgage requirements, namely that the property must be insured for full replacement value. This is corroborated by an inspector for Defendant NYCM. Even though Plaintiff Eznic ultimately signed an application for coverage of less than full replacement value, the record is clear that Plaintiff Eznic wanted the barn to be completely covered by the policy. In fact, Plaintiff Eznic even testified that it was not for him to decide whether or not the barn was covered, as it was required in the mortgage, and it did not make sense that he would suddenly drop coverage of the barn after maintaining such coverage for 10 years. Defendant attempts to twist that Plaintiff Eznic testified he did not want business insurance thus he voluntarily declined coverage, but the Court believes his testimony clearly demonstrates he was differentiating covering his business and covering the barn where the business was located, and that he wanted the barn to be covered per his mortgage requirements.
However, Defendant did not provide coverage sufficient for full replacement value and even misapprehended the total number of outhouses on the property. In fact, the testimony elicited from Defendant's representative Tammy Vincent evinced unfamiliarity with these types of policies and even confusion over what Plaintiffs were seeking. Yet, Ms. Vincent did not read the final policy—which she averred was Defendant's common practice—and she only provided Plaintiffs the default coverage for outbuildings which amounted to 10%. As the Court of Appeals has noted, and Supreme Court aptly cited to, "the law is reasonably settled on initial principles that insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so[.]" (Murphy v Kuhn, 90 NY2d 266, 270 [1997].) Given that Defendant NYCM's inspector corroborated that Plaintiffs were seeking full replacement coverage from Defendant, there is at least a question of fact against Defendant relating to negligence or breach of contract. (See American Bldg. Supply Corp. v Petrocelli Group, Inc., 19 NY3d 730, 735 [2012], reargue denied 20 NY3d 1044 [2013] ["To set forth a case for negligence or breach of contract against an insurance broker, a plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy."].) This Court need not identify every issue of fact or credibility, as there are many questions of fact and issues of credibility which would seem to preclude summary judgment for any party at this juncture.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby ORDERED that Defendant's motion is DENIED, and all other relief requested therein is denied in its entirety.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED. DATED: August 19, 2015 E N T E R : Catskill, New York _______________________________ HON. Lisa M. Fisher SUPREME COURT JUSTICE Papers Considered: Notice of motion, dated May 13, 2015; affirmation of Frederick M. Klein, Esq., with annexed exhibits, dated May 13, 2015; memorandum of law in support of Peter Fingar Agency, Inc.'s motion for leave to reargue, dated May 13, 2015; Affirmation in opposition to defendant's motion fore leave to reargue, of Sarah H. Adam, Esq., with annexed exhibit, dated May 27, 2015; and Reply affirmation of Frederick M. Klein, Esq., with annexed exhibit, dated June 2, 2015; reply memorandum of law in further support of Peter Fingar Agency, Inc.'s motion for leave to reargue, dated June 2, 2015.