FRED J. NICOTERA, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF VIRGINIA EANNACE, DECEASED, PAULINE NICOTERA, GIOIA L. NICOTERA AND MARISA L. NICOTERA, PLAINTIFFS-APPELLANTS,
ALLSTATE INSURANCE COMPANY, MICHAEL GARCIA AND GARCIA INSURANCE COMPANY, INC., DEFENDANTS-RESPONDENTS.
GUSTAVE J. DETRAGLIA, JR., UTICA, FOR PLAINTIFFS-APPELLANTS.
SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (ROBERT P.
CAHALAN OF COUNSEL), FOR DEFENDANT-RESPONDENT ALLSTATE
MAKRIS PLOUSADIS & SEIDEN, LLP, WOODBURY (RICHARD LILLING
OF COUNSEL), FOR DEFENDANTS-RESPONDENTS MICHAEL GARCIA AND
GARCIA INSURANCE COMPANY, INC.
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND
from an order and judgment (one paper) of the Supreme Court,
Oneida County (David A. Murad, J.), entered January 14, 2016.
The order and judgment, among other things, granted the
motions of defendants for summary judgment dismissing the
hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.
Virginia Eannace (decedent) owned a two-family home in Utica,
New York. In 2003, ownership of the property was transferred
to an irrevocable family trust, with plaintiffs Fred J.
Nicotera and Pauline Nicotera as trustees and plaintiffs
Gioia L. Nicotera and Marisa L. Nicotera, decedent's
nieces, as beneficiaries. Decedent resided at the property
until 2010, when she moved to a nursing home. At that time,
the property was insured by a homeowner's policy with
defendant Allstate Insurance Company (Allstate) in the name
of decedent only. On August 8, 2012, while decedent was still
alive, but residing in a nursing home, the residence was
damaged by fire. At the time of the fire, two tenants
occupied the second floor of the residence, and Gioia
occupied the first floor. Allstate disclaimed coverage on the
ground that the named insured did not live in the residence.
Plaintiffs commenced this action asserting causes of action
against Allstate for breach of contract and reformation of
the insurance contract and against Michael Garcia and the
Garcia Insurance Company, Inc. (Garcia defendants), for
negligence. Allstate and the Garcia defendants made separate
motions for summary judgment dismissing the amended complaint
insofar as asserted against them, and Supreme Court granted
the motions. We affirm.
we note that the Garcia defendants correctly contend that
plaintiffs' notice of appeal is premature because it was
filed prior to the service of a copy of the order and
judgment from which the appeal was taken with notice of entry
(see Matter of Danial R.B. v Ledyard M., 35 A.D.3d
1232, 1232; see generally CPLR 5513 [a]).
Nevertheless, in the exercise of our discretion and in the
interest of judicial economy, we will address the merits of
the appeal (see Danial R.B., 35 A.D.3d at 1232).
do not challenge the basis for Allstate's denial of
coverage. Instead, plaintiffs contend that Gioia is an
insured under the policy and that Pauline is an additional
insured under the policy. We reject those contentions. The
policy covered as an insured person any member of
decedent's household if such person was a relative of
decedent or a dependent person in decedent's care.
Although Gioia is decedent's niece and was residing at
the property at the time of the loss, she was not a resident
of decedent's "household" inasmuch as decedent
was not living at the subject property, but in a nursing
home, at the time of the loss. " The term household has
been characterized as ambiguous or devoid of any fixed
meaning... and, as such, its interpretation requires an
inquiry into the intent of the parties... The interpretation
must reflect the reasonable expectation and purpose of the
ordinary business [person] when making an insurance
contract... and the meaning which would be given it by the
average [person]' " (Farm Family Cas. Ins. Co. v
Nason, 89 A.D.3d 1401, 1402). Although that term "
should... be interpreted in a manner favoring coverage, as
should any ambiguous language in an insurance policy'
" (id.), we cannot interpret the policy to
provide coverage when the named insured and the relative do
not live in the same "household" at the time of the
loss. Furthermore, although Pauline was listed as an
additional insured on the 2009 Allstate application, she is
not listed as an additional insured on the declarations page
of the 2012 Allstate policy. In view of the foregoing, we
conclude that the court properly granted Allstate's
motion insofar as it sought dismissal of the breach of
contract cause of action.
to plaintiffs' contention, the court properly granted
that part of Allstate's motion seeking dismissal of the
cause of action for reformation of the policy. Although we
have reformed insurance policies to properly reflect the
ownership of the insured property when "ownership of the
property is misdescribed [in the policy, but] the policy
correctly identifies the building [or residence] that [the]
defendant agreed to insure" (DeSantis v Dryden Mut.
Ins. Co., 241 A.D.2d 916, 916; see Fahrenholz v
Security Mut. Ins. Co. [appeal No. 2], 32 A.D.3d 1326,
1327; Crivella v Transit Cas. Co., 116 A.D.2d 1007,
1008), "ownership is not the only issue here"
(Kyong Jae Lee v Lancer Ins. Co., 104 A.D.3d 612,
612). As noted by the court, "[p]laintiffs are seeking
not merely to correct the name of the named insured on the
declarations page, but are seeking to change the homeowner
policy to a policy that does not require the homeowner to
reside at the insured premises." Stated differently, by
issuing a homeowner's policy Allstate "did not
intend to cover the risk for which plaintiffs now seek
coverage, " and therefore reformation of the insurance
policy is not permissible here (Kyong Jae Lee, 104
A.D.3d at 612).
further conclude that the court properly granted the Garcia
defendants' motion for summary judgment dismissing the
amended complaint insofar as asserted against them. "As
a general principle, insurance brokers 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' " (Voss v Netherlands Ins. Co., 22
N.Y.3d 728, 734). Nonetheless, " they have no continuing
duty to advise, guide or direct a client to obtain additional
coverage' " (Sawyer v Rutecki, 92 A.D.3d
1237, 1237, lv denied 19 N.Y.3d 804).
"Exceptional and particularized situations may arise in
which insurance agents, through their conduct or by express
or implied contract with customers and clients, may assume or
acquire duties in addition to those fixed at common law"
(Murphy v Kuhn, 90 N.Y.2d 266, 272). "For
instance, where a special relationship' develops between
an agent and the insured, the agent may be held to have
assumed duties in addition to merely obtain[ing] requested
coverage' " (Sawyer, 92 A.D.3d at 1237).
"Such a special relationship may arise where (1) the
agent receives compensation for consultation apart from
payment of the premiums... [;] (2) there was some interaction
regarding a question of coverage, with the insured relying on
the expertise of the agent...; or (3) there is a course of
dealing over an extended period of time which would have put
objectively reasonable insurance agents on notice that their
advice was being sought and specially relied on' "
(id. at 1237-1238).
noted in Voss, "in the ordinary broker-client
setting, the client may prevail in a negligence action only
where it can establish that it made a particular request to
the broker and the requested coverage was not procured"
(id. at 734). Here, as in Voss, plaintiffs
are not pursuing this theory of liability; rather, their
"claim[s] hinge on the existence of a special
relationship" (id. at 735).
conclude that the Garcia defendants met their initial burden
of establishing that they did not have a special relationship
with decedent or plaintiffs, and plaintiffs failed to raise a
triable issue of fact (see generally Zuckerman v City of
New York, 49 N.Y.2d 557, 562). First, there is no
dispute that the Garcia defendants did not receive
compensation from decedent or plaintiffs over and above the
commissions they received for the Allstate insurance policy
they had provided. Second, plaintiffs failed to establish
that there was any question concerning coverage of
decedent's property, and that decedent or plaintiffs
relied on Garcia's expertise in resolving that question;
indeed, the record establishes that decedent and plaintiffs
were not so much concerned with drawing on Garcia's
expertise as with providing some business to Garcia, whom
they considered a good friend (see Sawyer, 92 A.D.3d
at 1238; Chase's Cigar Store v Stam Agency, 281
A.D.2d 911, 912). Lastly, the Garcia defendants established
that the third and final special relationship category does
not apply inasmuch as the parties clearly did not have
"a course of dealing" that lasted "an extended
period of time." As the court pointed out, "[t]here
is no question that the [decedent and plaintiffs] had no
prior insurance client-broker/agent relationship with the
Garcia [d]efendants before the subject transaction with
respect to insuring the [subject property]." Moreover,
the parties' entire "course of dealing" at the
time of the fire was less than 3 years (see generally
Murphy, 90 N.Y.2d at 272). Even accepting as true
plaintiffs' contentions that Garcia knew of