Appellate Division of the Supreme Court of New York, 2003

730 J & J LLC v. Fillmore Agency, Inc.

Appellate Division of the Supreme Court of New York · Decided March 10, 2003

303 A.D.2d 486; 755 N.Y.S.2d 887; 2003 N.Y. App. Div. LEXIS 2384

Cases that cite this one

6 later published cases cite this decision.

Dynamic Medical Imaging, P.C. v. State Farm Fire & Casualty Co. (New York District Court 2011)
Barrett v. Freifeld (Appellate Division of the Supreme Court of New York 2009)
Melnicke v. Brecher (Appellate Division of the Supreme Court of New York 2009)
Ali v. Pacheco (Appellate Division of the Supreme Court of New York 2005)
Bello v. New England Fin. (New York Supreme Court, Nassau County 2004)
Prohealth Care Assoc., Llp v. April (New York Supreme Court, Nassau County 2004)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

—In an action, inter alia, to recover damages for negligence in procuring insurance coverage, the defendant Kerwick & Curran, Inc., of New Jersey appeals from an order of the Supreme Court, Kings County (Held, J.), dated March 12, 2002, which denied its motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it and the cross claim asserted against it by the defendant Fillmore Agency, Inc.

Ordered that the order is affirmed, with one bill of costs.

A motion to dismiss pursuant to CPLR 3211 (a) (1) “may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002], citing Leon v Martinez, 84 NY2d 83, 88 [1994]; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]). The Supreme Court properly found that the appellant failed to submit sufficient evidence conclusively demonstrating that it was not in a relationship “so close as to approach that of privity” with the plaintiff so as to defeat liability to the plaintiff for *487any negligent failure to provide it with the insurance coverage it requested (Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 423 [1989], quoting Ultra-mares Corp. v Touche, 255 NY 170, 182-183 [1931]; see Credit Alliance Corp. v Andersen & Co., 65 NY2d 536, 551 [1985]; Lyons v Medical Malpractice Ins. Assn., 286 AD2d 711, 712 [2001]; International Fid. Ins. Co. v Gaco W., 229 AD2d 471 [1996]).

In light of our determination, we need not reach the parties’ remaining contentions. Santucci, J.P., Friedmann, Luciano and Rivera, JJ., concur.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.