Law Offices of Neal Brickman, P.C., New York (Neal Brickman
of counsel), for appellants.
Radler LLP, Uniondale (Cheryl F. Korman of counsel), for
National Life Insurance Company, National Life Group and
Equity Services, Inc., respondents.
Winget, Spadafora, Schwartzberg, LLP, New York (Matthew Tracy
of counsel), for Ronald Housley and Integre, LLC,
Cotton Wollan & Greengrass LLP, New York (Kate Elizabeth
DiGeronimo of counsel), for Christian Buzzanca, respondent.
Nicholas Goodman & Associates, PLLC, New York (H.
Nicholas Goodman of counsel), for Certain Underwriters at
Lloyd's of London, Petersen International Underwriters,
Thomas Petersen and Carney & Carney, Inc., respondents.
Sweeny, J.P., Renwick, Mazzarelli, Manzanet-Daniels, Feinman,
Supreme Court, New York County (Shirley Werner Kornreich,
J.), entered May 11, 2015, dismissing the action as against
Certain Underwriters at Lloyds of London (Underwriters),
Petersen International Underwriters (PIU), Thomas Petersen
(Mr. Petersen) (individually and d/b/a Petersen International
Insurance Brokers), and Carney & Carney, Inc., d/b/a
International Risk Management Group (IRMG), unanimously
modified, on the law, to vacate the judgment as to
Underwriters, and otherwise affirmed, without costs. Order,
same court and Justice, entered on or about April 27, 2015,
which, to the extent appealed from and appealable, granted
defendants Christian Buzzanca's, Ronald Housley's,
Equity Services, Inc.'s (ESI), National Life Insurance
Company's (NLIC), and Integre, LLC's motions to
dismiss all claims as against them except the breach of
fiduciary duty claim, unanimously modified, on the law, to
grant said defendants' motions as to the breach of
fiduciary duty claim, and otherwise affirmed, without costs,
and the appeal therefrom, to the extent it granted
Underwriters' motion to dismiss the complaint as against
them, unanimously dismissed, without costs, as subsumed in
the appeal from the judgment. Appeals from orders, same court
and Justice, entered on or about December 3, 2015, which,
upon reargument, granted Housley's, Integre's,
Buzzanca's, NLIC's, and ESI's motions to dismiss
the breach of fiduciary duty claim as against them,
unanimously dismissed, without costs, as academic.
court properly deemed plaintiffs' application for
disability insurance to be documentary evidence (see
Hefter v Elderserve Health, Inc., 134 A.D.3d 673,
674-675 [2d Dept 2015]). However, since plaintiff Stanley
Jonas disputed the genuineness of his signatures on the
disability insurance offer, we will not treat the offer as
documentary evidence (see id.).
footnote in their reply brief, plaintiffs contend that the
application cannot be considered because it was not attached
to the policy, contrary to Insurance Law § 3204.
Assuming that this contention (mentioned in plaintiffs'
opening brief only in a footnote in their Statement of Facts)
can be considered, we reject it. Whether or not a disability
insurance policy is a "policy of life, accident or
health insurance, or contract of annuity" pursuant to
§ 3204(a)(1), is an issue we need not decide. It would
only be relevant here if defendants were seeking to use a
misstatement in the application to their advantage (see
Cutler v Hartford Life Ins. Co., 22 N.Y.2d 245, 250-251
). However, defendants did not rely on the application
to demonstrate that plaintiffs made a misrepresentation. To
the contrary, they argued that the application was consistent
with the insurance ultimately procured for plaintiffs.
motion court correctly dismissed plaintiffs' claim that
Housley and Buzzanca (and therefore their employers, NLIC,
Integre, and ESI) breached an implied contract by failing to
procure the type of disability insurance plaintiffs
requested. According to Jonas's affidavit, Housley and
Buzzanca told him that the only place he could obtain
disability coverage sufficient to cover his needs was through
Underwriters and that he needed to enlist the assistance of
an excess line broker. In other words, they told him that
they were unable to obtain the requested coverage, thus
satisfying their duty under Murphy v Kuhn (90 N.Y.2d
266 ) "to obtain requested coverage for their
clients within a reasonable time or inform the client of the
inability to do so" (at 270). Indeed, the amended
verified complaint alleges that, ultimately, Mr. Petersen
served as Jonas's insurance broker.
application submitted by plaintiffs to PIU, which Jonas does
not deny signing, refutes plaintiffs' claim that the
Petersen defendants failed to procure the type of disability
insurance plaintiffs requested.
contend that the court erred in dismissing so much of their
contract claim as alleges that Underwriters and the Petersen
defendants breached a contract (the disability policy) by
failing to pay thereunder. As to the Petersen defendants, the
court did not err. The policy was issued by Underwriters, not
the Petersen defendants, and, while the amended verified
complaint alleges that PIU was Underwriters' agent, there
is no allegation, let alone clear and explicit evidence, that
the Petersen defendants intended to "substitute or
superadd [their] liability for, or to, that of
[Underwriters]" (Savoy Record Co. v Cardinal Export
Corp., 15 N.Y.2d 1, 4  [internal quotation marks
Underwriters, that part of the breach of contract claim
should not have been dismissed. The motion court found that
Jonas was not permanently totally disabled because he
admitted that, after submitting his insurance claim, he
applied for a position that would have paid him $300, 000 a
year. However, the fact that he applied for that position
does not necessarily mean that he could perform the material
and substantial duties (as those terms are defined in the
policy) of the occupation described in his insurance
application, namely, "Head of Broker Dealer/Introducing
Broker." As in Acquista v New York Life Ins.
Co. (285 A.D.2d 73');">285 A.D.2d 73 [1st Dept 2001]), issues of fact
preclude dismissal of the contract claim as against
failed to state a cause of action against Underwriters for
anticipatory breach of contract, since the policy at issue is
not a policy for monthly benefits but a policy for a lump sum
benefit of $5 million (see Wurm v Commercial Ins. Co. of
Newark, N.J., 308 ...