The following papers numbered 1 to 9 read on this motion by defendant Progressive Casualty Insurance Company (Progressive) pursuant to CPLR 3211(a)(7) to dismiss the complaint.

Papers

Numbered

Notice of Motion - Affidavits - Exhibits......... 1-3

Answering Affidavits - Exhibits.................. 4-7

Reply Affidavits................................. 8-9

Upon the foregoing papers it is ordered that the motion is denied.

In this action, plaintiffs allege that defendant JSM Brokerage, Inc. (JSM) breached an agreement between them by failing to procure sufficient and adequate insurance coverage for plaintiffs' motor vehicle, causing plaintiffs to sustain damages when the amount of a verdict entered against them in an action resulting from a motor vehicle accident exceeded the limits of the policy procured by JSM from Progressive. Plaintiffs allege that JSM was acting as an agent for Progressive and seeks to hold Progressive liable under the doctrine of respondeat superior.

When considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must [*2]accept the factual allegations of the complaint as true and afford plaintiff the benefit of every possible favorable inference, determining only whether those allegations make out any cognizable legal claim. (See Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Melnicke v Brecher, 65 AD3d 1020 [2009].) Affidavits submitted by a plaintiff may be considered by the court to remedy any defect in the complaint. (See Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Leon, 84 NY2d at 88.) Applying these standards, plaintiffs' pleading is sufficient to survive a dismissal motion.

As a general rule, "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; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage." (Murphy v Kuhn, 90 NY2d 266, 270 [1997].) It is recognized, however, that particular situations may arise where 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, 90 NY2d at 272.) The theory underlying the view that insurance agents or brokers are not personal financial counselors and risk managers is that insureds are in a better position to know their personal assets and abilities to protect themselves than the agent or broker, but the exception to that proposition arises when the agent or broker is informed of the insured's specific financial situation and asked to advise and act. (Murphy, 90 NY2d at 273.)

Brokers may be held liable under theories of breach of contract or negligence for failing to discharge the duties imposed by the agreement to obtain insurance, whether because they breached the agreement or because they failed to exercise due care in the transaction. (See Femia v Graphic Arts Mut. Ins. Co., 100 AD3d 954 [2012]; Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d 792 [2007].) The duty is defined by the nature of the client's request. (See Verbert v Garcia, 63 AD3d 1149 [2009]; Loevner v Sullivan & Strauss Agency, Inc., 35 AD3d 392, 393 [2006]; Kyes v Northbrook Prop. & Cas. Ins. Co., 278 AD2d 736, 737 [2000].)

Here, plaintiffs' allegations regarding the information they supplied to JSM as to their assets and needs, the requests they made to JSM regarding adequate insurance coverage, and the promise by JSM to find the most suitable coverage for them that would protect them in case of any lawsuit, are sufficient to state a claim that JSM failed to discharge the duty to obtain appropriate insurance coverage limits imposed by its agreement with plaintiffs. (See Bonded Waterproofing Servs., Inc. v Anderson-Bernard Agency, Inc., 86 AD3d 527, 529 [2011]; NWE Corp. v Atomic Risk Mgt. of NY, Inc., 25 AD3d 349 [2006]; Kyes, 278 AD2d at 737-738.) Since it is alleged that JSM was acting as the agent of Progressive, the complaint states a cause of action against Progressive. (See Bedessee Imports, Inc., 45 AD3d at 795; cf. Bonded Waterproofing Servs., Inc., 86 AD3d at 530-531.) While the insured bears the burden of proving [*3]the alleged specific undertaking by the broker (Murphy, 90 NY2d at 273), such burden need not be sustained to defeat a CPLR 3211(a)(7) dismissal motion. (See EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Farber v Breslin, 47 AD3d 873 [2008].)

Dated: April 25, 2013

Augustus C. Agate, J.S.C.