Upon the following papers numbered 1 to 72 read upon these motions for summary judgment, to compel, and cross motion for summary judgment: Notice of Motion and supporting papers, 1 - 13; 14 - 25, 26 - 33; Notice of Cross Motion and supporting papers, 36 - 57, 58 - 68; Answering Affidavits and supporting papers, 69 - 70; Replying Affidavits and supporting papers, 71 - 72; it is

ORDERED that these motions are hereby consolidated for purposes of this determination; and it is further

ORDERED that the motion (No. 001) by the defendant Allstate Insurance Company for an [*2]order pursuant to CPLR 3212 granting it summary judgment dismissing the complaint against it and declaring that it has no duty to afford coverage, defend or indemnify the plaintiffs, is granted; and it is further

ORDERED that the motion (# 002) by the defendants The Morley Agency, Inc. and John N. Mitchell, pursuant to CPLR 3124 and CPLR 3126 for an order compelling the production of documents from the plaintiffs is denied as academic; and it is further

ORDERED that the motion (# 003) by the defendant Geico Insurance Company for an order granting it summary judgment dismissing the complaint against it and declaring that it has no duty to afford coverage, defend or indemnify the plaintiffs, is granted; and it is further

ORDERED that the cross motion (# 004) by the plaintiffs for an order pursuant to CPLR 3212 striking the answers and counterclaims of the defendants Allstate Insurance Company and National Grange Mutual Insurance Company, and declaring that the defendants Allstate Insurance Company and National Grange Mutual Insurance Company were obligated to provide a defense in a certain underlying action commenced against the plaintiffs, for an order pursuant to CPLR 305 and CPLR 2001 granting leave to amend the caption herein, and for a protective order pursuant to CPLR 3103 is denied; and it is further

ORDERED that the cross motion (# 005) by the defendants The Main Street America Group and National Grange Mutual Insurance Company for an order granting them summary judgment dismissing the complaint against them and declaring that they have no duty to afford coverage, defend or indemnify the plaintiffs, is granted; and it is further

ORDERED that upon a search of the record pursuant to CPLR 3212 (b), summary judgment is granted in favor of the defendants The Morley Agency, Inc. and John N. Mitchell dismissing the complaint against them.

This is an action which seeks, among other things, a declaration that the plaintiffs are entitled to coverage pursuant to various insurance policies issued to them by the defendants, that they are entitled to recover the cost of defending themselves in a certain underlying action, and that they are entitled to recover the amount that they paid to settle that action. In their complaint, the plaintiffs herein set forth seven causes of action sounding, respectively, in declaratory judgment, breach of contract, breach of good faith, violation of GBL 349, fraud, negligent procurement and respondeat superior.

The underlying action involves allegations against the plaintiffs herein of, among other things, sexual assault, hostile work environment, and discrimination. It appears that non-party Pilar Cepeda (Cepeda) was employed by the plaintiff Michael S. Oakley, M.D., P.C. (Corporate plaintiff) from May 2000 to August 15, 2007, as a medical assistant to the plaintiff Michael S. Oakley (Oakley), and that Oakley and his wife, the plaintiff Patricia Oakley, supervised Cepeda in her work. Cepeda commenced the underlying action entitled Cepeda v Michael S. Oakley, M.D., P. C., [*3]Supreme Court, Suffolk County, Index No. 08-0341 (Cepeda action or underlying action) by filing of a verified complaint dated September 17, 2007. In her complaint, Cepeda alleges that Oakley and Patricia Oakley subjected her to "sexual assault, unwanted touching, battery, sexual harassment, discrimination based on race and national origin, a hostile work environment, retaliation and wrongful termination," and that "[a]ll of the within referenced acts and conduct were partaken by [Oakley and Patricia Oakley] while they were in the course and scope of their employment with Defendant Michael S. Oakley, M.D., P.C."

The plaintiffs herein commenced the instant action by the filing of a verified complaint on April 19, 2010. In their complaint, the plaintiffs allege that the defendant Allstate Insurance Company (Allstate) issued to Oakley and Patricia Oakley a "Deluxe Homeowner's insurance policy, number 903300437 ... effective August 20, 2002 to August 20, 2008." The plaintiffs further allege that the defendant Geico Insurance Company (Geico) issued to Oakley and Patricia Oakley umbrella policies bearing policy numbers P5024774 and P5181200 "effective May 11, 2002 to May 11, 2004; March 23, 2005 to March 23, 2007 and August 30, 2007 to August 30, 2008," and that the defendant National Grange Mutual Insurance Company, a subsidiary of the defendant The Main Street America Group (collectively NGM), issued to "Plaintiff a Businessowner's insurance policy, bearing policy number BPV 10504 and Workers Compensation and Employers Liability Policy ... [both] effective November 29, 2004 to November 29, 2007."

It is undisputed that the Corporate plaintiff is not a named insured on the Allstate and Geico policies, and that the Corporate plaintiff is the only named insured on the NGM policies. In addition, it is undisputed that the plaintiffs settled the Cepeda action pursuant to a written "Confidential Settlement Agreement and General Release," that Allstate, Geico and NGM timely disclaimed coverage and any duty to defend or indemnify the plaintiffs under their respective insurance policies, and that the complaint in the Cepeda action contains only one cause of action which potentially alleges negligence on the part of the plaintiffs.

Allstate now moves for summary judgment dismissing the complaint and for an order declaring that it is not obligated to defend or indemnify the plaintiffs in the Cepeda action. In support of its motion, Allstate submits the pleadings herein, the complaint in the underlying action, the insurance policies that it issued to the plaintiffs, and its disclaimer letter. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Rebecchi v Whitmore, 172 AD2d 600, 568 NYS2d 423 [2d Dept 1991]; Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; O'Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). Furthermore, the parties' competing interest must be viewed "in a light most favorable to the party opposing the motion" (Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610, 563 NYS2d 449 [2d Dept 1990]). [*4]

It is undisputed that Allstate issued an Allstate Indemnity Company Deluxe Homeowner's Liability Insurance Policy, number 903300437 (Allstate Policy), effective August 20, 2002, to Oakley and Patricia Oakley.^[FN1] Allstate contends that it denied and disclaimed all coverage, liability and responsibility under the Allstate Policy on the grounds that, among other things, the allegations in the complaint served in the Cepeda action do not constitute an "occurrence" as defined in the Allstate Policy, that coverage is barred by the exclusion in the Allstate Policy for intentional acts, and that coverage is barred by the exclusion in the Allstate Policy for damages arising from business activities of an injured person. Initially, the Court notes that Allstate has established its entitlement to summary judgment dismissing the complaint of the Corporate plaintiff against it and a declaration that it is not obligated to defend or indemnify said plaintiff.

The Allstate Policy contains the following relevant language:

Section II — Family Liability and Guest Medical Protection

Coverage X —Family Liability Protection

Losses We Cover Under Coverage X:

Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and is covered by this part of the policy.(Emphasis in original)

Losses We Do Not Cover Under Coverage X:

1. We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, an insured person.

This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime.

9. We do not cover bodily injury or property damage arising out of the past or present business activities of an insured person.

[*5]

Definitions Used In This Policy

4. "Bodily injury" — means physical harm to the body, including sickness or disease, and resulting death, except that bodily injury does not include ...

6."Business" — means:

a) any full or part-time activity of any kind engaged in for economic gain and the use of any part of any premises for such purposes ...

9. "Occurrence" — means an accident, including continuous or repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury or property damage.

It is well settled that a court addressing an insurance coverage dispute must initially look to the language of the subject policy (Raymond Corp. v National Union Fire Ins. Co., 5 NY3d 157, 800 NYS2d 89 [2005]; State of New York v Home Indem. Co., 66 NY2d 669, 495 NYS2d 969 [1985]). The policy is construed "in a way that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect" (Raymond Corp. v National Union Fire Ins. Co., supra at 162, quoting Consolidated Edison Co. of NY v Allstate Ins. Co., 98 NY2d 208, 221-222, 746 NYS2d 622 [2002]). "Unambiguous provisions of a policy are given their plain and ordinary meaning" (Lavanant v General Acc. Ins. Co., 79 NY2d 623, 629, 584 NYS2d 744 [1992]) and ambiguous provisions are construed "against the insurer who drafted the contract" (State Farm Mut. Auto Ins. Co. v Glinbizzi, 9 AD3d 756, 757, 780 NYS2d 434 [3d Dept 2004]).

Here, the Court finds that the policy provisions are not ambiguous, and that the dispute between the parties turns on whether Cepeda's claims constitute an occurrence under the Allstate Policy. In general, the party claiming the existence of insurance coverage has the burden of proving its entitlement (York Restoration Corp. v Solty's Const., Inc., 79 AD3d 861, 914 NYS2d 178 [2d Dept 2010]; Stillwater Cent. School Dist. v Great Am. E & S Ins. Co., 66 AD3d 1260, 887 NYS2d 719 [3d Dept 2009]; National Abatement Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 33 AD3d 570, 824 NYS2d 230 [1st Dept 2006]; Kidalso Gas Corp. v Lancer Ins. Co., 21 AD3d 779, 802 NYS2d 9 [1st Dept 2005]; Moleon v Kreisler Borg Florman Gen. Const. Co., 304 AD2d 337, 758 NYS2d 621 [1st Dept 2003]). It has been held that policies based on an accident or [*6]occurrence require a "fortuitous loss," and that the insured has the initial burden of proving that the damage was the result of an "accident" or "occurrence" to establish coverage (Consolidated Edison Co. of NY v Allstate Ins. Co., 98 NY2d 208, 746 NYS2d 622 [2002]; Northville Indus. Corp. v National Union Fire Ins. Co. of Pittsburg, Pa., 89 NY2d 621, 657 NYS2d 564 [1997]). A review of the complaint in the Cepeda action reveals that all of the factual allegations involve intentional conduct on the part of Oakley and Patricia Oakley. Said complaint contains a long list of sexual acts allegedly perpetrated against Cepeda by Oakley, and allegations of verbal abuse, discriminatory comments and harassment by Oakley and Patricia Oakley. The Allstate Policy requires "fortuity" and thus implicitly excludes coverage for intended or expected harms (Consolidated Edison Co. of NY v Allstate Ins. Co., supra).

However, it is well settled that an insurer's duty to defend is broader than its duty to indemnify, such that an insurer may be obligated to defend its insured even if, at the conclusion of an underlying action, it is found to have no obligation to indemnify its insured (see Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 818 NYS2d 176 [2006]; Global Constr. Co. v Essex Ins. Co., 52 AD3d 655, 860 NYS2d 614 [2d Dept 2008]; City of New York v Evanston Ins. Co., 39 AD3d 153, 157, 830 NYS2d 299 [2d Dept 2007]). An insurer's duty to defend arises whenever "the allegations within the four corners of the underlying complaint potentially give rise to a covered claim" (Worth Constr. Co. v Admiral Ins. Co., 10 NY3d 411, 415, 859 NYS2d 101 [2008], quoting Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 175, 667 NYS2d 982 [1997]). Here, the complaint does not set forth any allegations giving rise to a covered claim.

In opposition to the motion, the plaintiffs submit, among other things, the affirmation of their attorney, the affidavits of Oakley and Patricia Oakley, the confidential settlement agreement in the Cepeda action, and a copy of an affidavit from Cepeda in that action. In his affirmation, the attorney for the plaintiffs contends that the Cepeda action contains a cause of action for negligent infliction of emotional distress, "raising the inference that the acts alleged in the underlying action could have been committed by accident." His argument is that if the acts might be deemed an "occurrence" then the plaintiffs are entitled coverage under the Allstate Policy. The factual allegations set forth in that cause of action consist of one sentence which states that Oakley and Patricia Oakley "conducted themselves in a manner including, but not limited to, assaulting, battering, abusing, detaining, stealing from, and terrorizing [Cepeda]." In reading the entire complaint in the Cepeda action, the Court finds that the factual allegations exclusively assert intentional conduct and acts on the part of Oakley and Patricia Oakley. Because the operative facts do not give rise to any recovery by the plaintiffs, Allstate has established its entitlement to summary judgment herein (Green Chimneys School for Little Folk v National Union Fire Ins. Co., 244 AD2d 387, 664 NYS2d 320 [2d Dept 1997]).

In his affirmation, the plaintiffs' attorney further states that "the plaintiff in the underlying action signed an Affidavit, wherein she states that she misconstrued the acts of the plaintiffs herein and did not believe that there was any intent on their part to inflict harm." He contends that Cepeda's affidavit establishes that the plaintiffs' actions were not intentional, which entitles them to coverage under the Allstate Policy. In her affidavit, Cepeda swears that "[w]ith regard to the notes attached [*7]to the Complaint in the Action filed against Michael Oakley, et al., I realize that I misconstrued his intentions in those notes, that he had no hostile intent, that he did not intend to cause any harm to me, and genuinely believed that the statements contained therein were not offensive to me or unwelcome."

A review of the complaint in the Cepeda action, the settlement agreement in that action and Cepeda's affidavit, reveals that her affidavit does not acknowledge her alleged error regarding all of the plaintiffs' actions. Although not part of the record herein, it is clear that Cepeda attached a number of notes to her complaint that documented Oakley's attitudes and actions, and that the plaintiffs did not want those notes to become public. The Court finds that the Cepeda affidavit does not negate the allegations in the complaint served in the Cepeda action, nor does it raise a question as to whether the plaintiffs' actions were intentional or not (see generally Allstate Ins. Co. v Mugavero, 79 NY2d 153, 581 NYS2d 142 [1992]). Accordingly, the Court finds that Allstate is entitled to a declaration that it is not obligated to defend or indemnify the plaintiffs in the Cepeda action.

In light of the Court's decision herein, it is not necessary to reach the question whether the exclusions for intentional acts and business activities foreclose the plaintiffs' efforts to obtain coverage under the Allstate Policy. In any event, a review of the record reveals that Allstate met its burden in establishing that those exclusions would entitle it to summary judgment herein.

The Court notes that the plaintiffs' complaint sets forth a second, third, fourth, fifth and sixth cause of action against Allstate, sounding in breach of contract, breach of good faith, violation of GBL 349, fraud, and negligent procurement, respectively.^[FN2] The second, third and fifth causes of action for breach of contract, breach of good faith and fraud are rendered academic and are dismissed based on the Court's finding that Allstate did not have an obligation to defend or indemnify the plaintiffs in the underlying action. The plaintiffs' fourth cause of action alleging that Allstate violated GBL 349 is likewise without merit.

GBL 349, entitled "Deceptive acts and practices unlawful," provides in pertinent part:

(a) Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.

In order to establish a prima facie violation under the statute a plaintiff must allege that the defendant: (1) was engaged in consumer oriented conduct; (2) that is deceptive or misleading in a material way; and (3) that plaintiff has been injured because of that conduct (Soule v Norton, 299 AD2d 827, 750 NYS2d 692 [4th Dept 2002]). The defendant's acts or practices must be shown to have a broader impact on consumers at large and do not merely involve a private dispute unique to the litigants (Oswego Laborers' Local 2 14 Pension Fund v Marine Midland Bank, 85 NY2d 20, [*8]623 NYS2d 529 [1995]. Here, the allegation in the plaintiffs' complaint is that Allstate has engaged in deceptive practices "by its bad faith interpretation of the insurance contracts with Plaintiffs," and "by refusing Plaintiffs' demand for coverage." It is well settled that a contract dispute between insured and insurer regarding coverage is not consumer-oriented conduct, and thus does not satisfy the requirement for claim under the statute (Zawahir v Berkshire Life Ins. Co., 22 AD3d 841, 804 NYS2d 405 [2d Dept 2005]; see also Wilner v Allstate Ins. Co., 71 AD3d 155, 893 NYS2d 208 [2d Dept 2010]; Continental Cas. Co. v Nationwide Indem. Co., 16 AD3d 353, 792 NYS2d 434 [1st Dept 2005]). Allstate has established its prima facie entitlement to summary judgment regarding the plaintiffs' fourth cause of action, and the plaintiffs have failed to raise an issue of fact requiring a trial of the issues. Accordingly, the fourth cause of action is dismissed.

In their sixth and final cause of action against Allstate for negligent procurement, the plaintiffs allege that Allstate had a professional relationship with the plaintiffs, and that it was "aware of the Plaintiff's (sic) need for coverage in the event of a claim or lawsuit against Plaintiffs such as those made by Pilar Cepeda." The plaintiffs further allege that Allstate failed to "act in good faith, with the requisite care and reasonable diligence in procuring the desired and necessary insurance coverage" for the plaintiffs. Initially, the Court notes that Allstate has established that the plaintiffs could not have obtained insurance coverage for the claims asserted by Cepeda. It has been held that public policy precludes a party from obtaining insurance against intentional torts and the punitive liability that may arise from them (Massena v Healthcare Underwriters Mut. Ins. Co., 281 AD2d 107, 724 NYS2d 107 [3d Dept 2001]). In addition, the plaintiffs have cited no authority holding an insurer liable for negligent procurement, a cause of action which arises out of an agency relationship between a party seeking insurance coverage and a person or entity who enters into a contract with that party to procure coverage (cf. Kay Bee Bldrs., Inc. v Merchant's Mut. Ins. Co., 61 AD3d 720, 877 NYS2d 390 [2d Dept 2009] [complaint against insurer also dismissed where insurance agency and agent granted summary judgment in suit alleging negligent procurement]; Wender v Gilberg Agency, Inc., 304 AD2d 311, 757 NYS2d 286 [1st Dept 2003] [neither insurer nor agent liable for negligent procurement where plaintiff lacked a special relationship with agent]; Basic Image v Transamerica Ins. Fin. Corp., 241 AD2d 424, 660 NYS2d 433 [1st Dept 1997] [insurance premium financing company granted summary judgment as it was not broker or agent of insured]).

Allstate has established its prima facie entitlement to summary judgment herein, and the plaintiffs have failed to raise a triable issue of fact. Accordingly, Allstate's motion for summary judgment dismissing the complaint is granted, and Allstate is entitled to a declaration that it is not obligated to defend or indemnify the plaintiffs in the Cepeda action.

The Court will next address the two remaining motions for summary judgment (# 003, and #005) which seek to dismiss the plaintiffs' complaint, which are determinative of the issues in the remaining motions. Geico now moves (# 003) for summary judgment dismissing the complaint and for an order declaring that it is not obligated to defend or indemnify the plaintiffs in the Cepeda action on the same grounds as asserted by Allstate plus three additional exclusions set forth in its policy with Oakley and Patricia Oakley. It is undisputed that Geico issued two Personal Umbrella [*9]Policies, number P5024774 and P5181200, effective May 11, 2002 to May 11, 2004; March 23, 2005 to March 23, 2007 and August 30, 2007 to August 30, 2008 to Oakley and Patricia Oakley (Geico Policy).^[FN3] It is undisputed that the Corporate plaintiff is not a named insured under the Geico Policy, that Geico has established its entitlement to summary judgment dismissing the complaint of the Corporate plaintiff against it, and that Geico is entitled to a declaration that it is not obligated to defend or indemnify said plaintiff.

The Geico Policy contains the following relevant language:

Part II — COVERAGE

We pay damages on behalf of an insured arising out of an occurrence, subject to the terms and conditions of this policy.

4. "Damages" means the total of:

(a) damages an insured must pay:

(1) legally; or

(2) by agreement with our written consent; because of personal

injury or property damage covered by this policy;

(c) " Damages" does not include:

(I) salaries of an insured's regular employee(s); or

(ii) expenses payable under Part V. Of this policy; or

(iii) punitive or exemplary damages.

8. "Occurrence" means an accident or event, including a continuous or repeated exposure to conditions which results in personal injury or property damage either expected or intended by you.

Part III - Exclusions

We do not cover damages resulting from:

4. Acts committed by or at an insured's direction with intent to cause personal injury or [*10]property damage. This exclusion does not apply to personal injury or property damage resulting from an act committed by an insured with reasonable and legally permissible force to protect persons and property from injury or damage.

5. Business pursuits or business property of an unsured unless covered by primary insurance described in the declarations. Our coverage is no broader than the primary insurance except for our liability limit.

14. Sexual molestation, corporal punishment or physical or mental abuse inflicted upon any person by or at the direction of an insured, an insured's employee or any other person at an insured's direction.

16. An award of punitive or exemplary damages.

21. Discrimination because of race, creed, color, or national origin.

It is undisputed that the Geico Policy provides excess or umbrella coverage to Oakley and Patricia Oakley regarding homeowner's liability, and that the Allstate Policy is primary insurance underlying the Geico Policy. It is also undisputed that Geico timely disclaimed coverage in its letter to its insureds dated December 17, 2008, setting forth the relevant terms of its policy. For the reasons set forth as to Allstate above, the Court finds that Geico has established its prima facie entitlement to summary judgment herein. Having established its entitlement to summary judgment dismissing the complaint against it, it is incumbent upon the plaintiffs to produce evidence in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, supra; Rebecchi v Whitmore, supra; O'Neill v Fishkill, supra). Here, the plaintiffs do not address the contentions set forth in Geico's motion in their omnibus opposition papers submitted in response to the motions made herein. Accordingly, Geico's motion for summary judgment dismissing the complaint is granted, and Geico is entitled to a declaration that it is not obligated to defend or indemnify the plaintiffs in the Cepeda action.

Turning to NGM's motion (# 005) for summary judgment dismissing the complaint and for an order declaring that it is not obligated to defend or indemnify the plaintiffs in the Cepeda action, it is undisputed that NGM issued to the Corporate plaintiff a Business owner's insurance policy, number BPV 10504 (Business Policy), and a Workers Compensation and Employers Liability Policy, number WCV 10504 (WC Policy), both of which were effective November 29, 2004 to November 29, 2007. It is also undisputed that NGM timely disclaimed coverage in its letter to its insured dated October 29, 2009, setting forth the relevant terms of its policy. [*11]

The Business Policy issued by NGM reveals that it contains the following relevant language in Businessowner Liability Coverage Form (BP 00 06 01 97):

A. Coverages

1. Business Liability

a.We will pay those sums that the insured becomes legallyobligated to pay as damages because of "bodily injury" ...to which this insurance applies ... However, we will haveno duty to defend the insured against any "suit" to whichthis insurance does not apply.

b. This insurance applies:

(1) To "bodily injury" and "property damage" only if:

(a) The "bodily injury" or "property damage" is causedby a "occurrence" that takes place in the coverageterritory;" and

(b) The "bodily injury" or "property damage" occursduring the policy period.

B. Exclusions

1. Applicable to Business Liability Coverage

This insurance does not apply to:

a. Expected or Intended Injury

"Bodily injury" or "property damage" expected or intended

from the standpoint of the insured ...

e. Employer's Liability

"Bodily injury" to:

(1) An "employee" of the insured arising out of an in the

course of: [*12]

(a) Employment by the insured; or ...

F. Liability and Medical Expense Definitions

3."Bodily injury" means bodily injury, sickness or disease

sustained by a person, including death that results from any

of these at any time.

12."Occurrence" means an accident, including continuous or

repeated exposure to substantially the same general harmful

conditions.

For the reasons set forth in the analysis as to Allstate above, the Court finds that NGM has established its prima facie entitlement to summary judgment herein, and that it is incumbent upon the plaintiffs to produce evidence in admissible form sufficient to require a trial of the material issues of fact. Here, the plaintiffs do not address the contentions set forth in that branch of NGM's motion which seeks summary judgment regarding its obligations under the Business Policy. Accordingly, that branch of NGM's motion for summary judgment dismissing the complaint is granted.^[FN4]

Turning to that branch of NGM's motion which seeks summary judgment under its workers compensation and employers liability policy. The WC Policy issued by NGM contains the following relevant language:

A. How This Insurance Applies

This workers compensation insurance applies to bodily injury by accident or bodily injury by disease ...

* * * [*13]

We have no duty to defend a claim, proceeding or suit that is not covered by this insurance.

* * *

A. How This Insurance Applies

This employers liability insurance applies to bodily injury by accident or bodily injury by disease ...

* * *

C. Exclusions

This insurance does not cover:

5. bodily injury intentionally caused or aggravated by you;

7. damages arising out of coercion, criticism, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation, discrimination against or termination of any employee, or any personnel practices, policies, acts or omissions.

For the reasons set forth above, the Court finds that NGM has established its entitlement to summary judgment that there is no coverage under the WC Policy, and that the relevant exclusions bar coverage herein. In his affirmation in opposition to NGM's motion, the attorney for the plaintiffs contends that NGM raises the same arguments as Allstate in denying coverage herein, and he asserts that the Court should reject those arguments. He further contends that the exclusion under Part Two, subsection C (7) "must be held improper to avoid having the very purpose of the New York Workers' Compensation Law undermined," as it is a blanket exclusion which does not take into account whether the act was accidental. However, the opposition does not cite any authority for that position. In addition, the allegations in the complaint served in the Cepeda action, to the extent they evoke any of the acts included in said subsection, set forth intentional acts.

Here, the affirmation by the attorney for the plaintiffs, as well as the affidavits of Oakley and Patricia Oakley, fail to raise an issue of material fact requiring a trial of the causes of action asserted [*14]against NGM.^[FN5] Accordingly, NGM's motion for summary judgment dismissing the complaint is granted, and NGM is entitled to a declaration that it is not obligated to defend or indemnify the plaintiffs in the Cepeda action.

Thus, the Court has determined that the motions for summary judgment made by the defendants Allstate, Geico and NGM should be granted. However, the inquiry regarding the plaintiffs' actions should not end there. A Court is empowered to search the record and grant summary judgment in favor of a nonmoving party (CPLR 3212 [b]; 1133 Taconic, LLC v Lartrym Serv., Inc., 85 AD3d 992, 925 NYS2d 840 [2d Dept 2011]; Shore Dev. Partners v Board of Assessors, 82 AD3d 988, 918 NYS2d 566 [2d Dept 2011]; Masi v Kir Munsey Park 020 LLC, 76 AD3d 514, 906 NYS2d 88 [2d Dept 2010]). However, this power applies only with respect to a cause of action or issue that is the subject of the motions before the Court (Dunham v Hilco Const. Co., 89 NY2d 425, 654 NYS2d 335 [1996]; Masi v Kir Munsey Park 020 LLC, supra; Lee v City of Rochester, 254 AD2d 790, 677 NYS2d 848 [4th Dept 1998]). Upon reviewing the entirety of the records submitted on the motions for summary judgment it is determined that the cause of action for negligent procurement against the defendants The Morley Agency, Inc. and John N. Mitchell (collectively Morley) is before the Court, and that said defendants are entitled to summary judgment as a matter of law.

A review of the record reveals that Morley was the insurance broker for the plaintiffs. The only allegations against Morley are set forth in the plaintiffs' sixth cause of action for negligent procurement. To reiterate said pleading, the plaintiffs allege that Morley had a professional relationship with the plaintiffs, and that it was "aware of the Plaintiff's (sic) need for coverage in the event of a claim or lawsuit against Plaintiffs such as those made by Pilar Cepeda." The plaintiffs further allege that Morley failed to "act in good faith, with the requisite care and reasonable diligence in procuring the desired and necessary insurance coverage" for the plaintiffs.

It is well settled that an insurance broker has a duty to obtain coverage for a client within a reasonable time after he or she is asked to do so, or inform the client of the inability to obtain said coverage (Murphy v Kuhn, 90 NY2d 266, 660 NYS2d 371 [1997]; Santaniello v Interboro Mut. Indem. Ins. Co., 267 AD2d 372, 700 NYS2d 230 [2d Dept 1999]; Wied v New York Cent. Mut. Fire Ins. Co., 208 AD2d 1132, 618 NYS2d 467 [3d Dept 1994]; Erwig v Edward F. Cook Agency, 173 AD2d 439, 570 NYS2d 64 [2d Dept 1991]). However, an agent has no continuing duty to advise, guide, or direct a client to obtain additional coverage absent the existence of a special relationship with the client (Verbert v Garcia, 63 AD3d 1149, 882 NYS2d 259 [2d Dept 2009]; see also Murphy v Kuhn, supra; Sawyer v Rutecki, 92 AD3d 1237, 937 NYS2d 811 [4th Dept 2012]; Curiel v State Farm Fire and Cas. Co., 35 AD3d 343, 826 NYS2d 391 [2d Dept 2006]; Damask Inc. v CNA Ins. Co., 269 AD2d 733, 703 NYS2d 614 [4th Dept 2000]). [*15]

It has been held that 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" (Sawyer v Rutecki, supra; Polly Esther's South, Inc. v Setnor Byer Bogdanoff, 10 Misc 3d 375, 807 NYS2d 799 [Sup Ct, New York County 2005]). However, it is only in "exceptional and particularized situations" when there is a "special relationship" between an insurance broker and its customer that a special level of advisory responsibility may exist (Murphy v Kuhn, supra at 270-72; see also Verbert v Garcia, supra; Bruckmann, Rosser, Sherrill & Co., L.P. v Marsh USA, Inc., 65 AD3d 865, 885 NYS 2d 276 [1st Dept 2009]). A special relationship is not established by the fact that the relationship of the parties had lasted a considerable period of time (Hersch v DeWitt Stern Group, Inc., 43 AD3d 644, 841 NYS2d 516 [1st Dept 2007]; M & E Mfg. Co. v Frank H. Reis, Inc., 258 AD2d 9, 692 NYS2d 191 [3d Dept 1999]).

The plaintiffs do not allege that they asked Morley to obtain coverage for the type of claims made by Cepeda, or that they had a special relationship with Morley. More importantly, the Court notes that the record establishes that the plaintiffs could not have obtained insurance coverage for the claims asserted by Cepeda. It has been held that public policy precludes a party from obtaining insurance against intentional torts and the punitive liability that may arise from them (Massena v Healthcare Underwriters Mut. Ins. Co., supra). Accordingly, the Court finds that Morley is entitled to summary judgment herein.

The Court notes that Morley has moved (# 002) for an order compelling the plaintiffs to produce, among other things, the notes attached as exhibits to the Cepeda complaint, which were delivered to the plaintiffs' attorney pursuant to the settlement agreement in the underlying action. In light of the Court's findings herein, and the grant of summary judgment dismissing the complaint against Morley, said motion is denied as academic. In addition, the Court's findings dismissing the complaint against Morley necessitates the dismissal of the plaintiffs' seventh cause of action against NGM for respondeat superior. The plaintiffs' seventh cause of action is based on the allegation that Morley was an agent of NGM. Accepting the allegation as true, NGM cannot be held liable unless the actions of its agent, servant or employee were negligent (see generally Felberbaum v Weinberger, 54 AD3d 717, 863 NYS2d 747 [2d Dept 2008]).^[FN6]

The Court now turns to the plaintiffs' motion (# 004) for summary judgment in their favor on their complaint, to amend the caption herein, and for a protective order from Morley's discovery demands. For the reasons set forth herein, the Court finds that the branch of plaintiffs motion which seeks summary judgment should be denied. In addition, that branch of the motion which seeks to amend the caption to correct the name of NGM is denied as academic, and that the branch which seeks a protective order is likewise academic. Accordingly, the plaintiffs' motion is denied. [*16]

Accordingly, Allstate, Geico and NGM are entitled to entry of judgment declaring that they have no obligation to afford coverage, defend or indemnify the plaintiffs in the underlying action.

Settle judgment.

Dated:

HON. WILLIAM B. REBOLINI, J.S.C.