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46th Street Development, LLC v. Marsh Usa

New York Supreme and/or Appellate Courts Appellate Division, First Department


November 13, 2012

46TH STREET DEVELOPMENT, LLC,
PLAINTIFF-APPELLANT,
v.
MARSH USA, INC.,
DEFENDANT-RESPONDENT.

Appeal from order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about August 25, 2011, which granted defendant's motion to dismiss the complaint for failure to state a cause of action, deemed an appeal from the judgment, same court and Justice, entered October 18, 2011, dismissing the complaint (CPLR 5501 [c]), and, so considered, the judgment unanimously affirmed, with costs.

46th St. Dev., LLC v Marsh USA, Inc.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 13, 2012

Gonzalez, P.J., Saxe, Catterson, Acosta, Gische, JJ.

Plaintiff failed to state a cause of action based on defendant's failure to procure insurance coverage for a delay in obtaining temporary certificates of occupancy (TCO coverage) for the subject condominiums. Absent a specific request for the insurance, defendant, as broker, had no duty to obtain coverage (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152, 157-158 [2006]). Here, there is no evidence that plaintiff specifically requested that defendant obtain TCO coverage. Nor was there a special relationship between the parties (see Murphy v Kuhn, 90 NY2d 266, 272 [1997]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 13, 2012

CLERK

20121113

© 1992-2012 VersusLaw Inc.



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