Piscil v Public Admr. of Kings County

Supreme Court, Kings County

Decided on June 1, 2026

Index No. 524165/2017

Aaron D. Maslow, J.

The following papers efiled on NYSCEF were used on this motion: 201-223, 267-273, 297.

Upon the foregoing papers, having heard oral argument^FN1, and due deliberation having been had, the within motion is determined as follows.

I. Background

Plaintiff Jaime Miguel Piscil alleges that he performed construction work at 11 Montague Terrace in Brooklyn, New York, a multi-story building owned by Defendants Elaine and Leonard Gelstein.^FN2 In October 2017, construction work was being performed within a tenant's apartment. It involved knocking down a wall in another apartment to create a duplex; the construction project also sought to remodel a kitchen and bathroom within the downstairs unit and install a staircase to connect the two units. Piscil alleges that on the date of the accident, he was in the process of installing sheetrock within the premises, when he fell off a six-foot aluminum A-frame ladder, fracturing his wrist.

After commencement of the main action by Plaintiff, Defendant Leonard Gelstein commenced a third-party action against his insurance brokers, Max J. Pollack & Sons, Inc. (MJP) and Brownstone Agency, Inc., for failing to procure insurance that was adequate to his needs. Mr. Gelstein died and was substituted for by the Public Administrator of Kings County. The insurance policy covering the subject property contained a contractor exclusion provision which excepted from coverage bodily injury to any contractors performing work.

II. Movant's Contentions

Third-Party Defendant MJP moves for summary judgment dismissing the third-party complaint on the asserted grounds that Defendant/Third-Party Plaintiff has failed to establish that MJP owed Mr. and Mrs. Gelstein a duty to procure additional insurance and that there was no special relationship between the Gelsteins and MJP. MJP maintains further that Third-Party Plaintiff should be barred from pursuing the claims in the third-party complaint predicated upon contribution and indemnity.

A. Summary Judgment Should Be Granted in the Absence of a Triable Issue of Fact

MJP further argues that its motion for summary judgment should be granted as a matter of law because the Gelsteins failed to establish that they made a specific request for the coverage in question or they had a special relationship with the broker (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152 [2012]). As in the case at bar, it was uncontested in the Hoffend case, that, after the policy was issued, the policyholders read it and did not contact their broker with any questions or changes. The Court in Hoffend also held that "[a] general request for coverage will not satisfy the requirement of a specific request for a certain type of coverage" (id. at 158). [*2]Mr. Gelstein could not recall ever asking MJP any questions about the coverage or exclusions in the policies. Both he and his wife testified they did not have any complaints about the policy at issue when they received it and reviewed the coverages, nor did they request any more comprehensive coverage.

While the Gelsteins did maintain insurance coverage through MJP for approximately ten years, such fact is wholly insufficient, without more, to establish a special relationship between the parties. MJP notes that the broker in Murphy v Kuhn (90 NY2d 266 [1997]) handled the policyholder's personal insurance needs for 13 years and served as the company's insurance broker for over three decades. The Court of Appeals, in Murphy, held that no special relationship existed between the parties. Furthermore, as in Hoffend, no special relationship existed as the Gelsteins did not compensate MJP for its insurance advice apart from the payment of premiums which were paid directly to the insurer, nor did they delegate their decision-making responsibility.

Finally, in regard to summary judgment, MJP argues that deposition testimony adequately disposes of any triable issues of fact. Mr. Gelstein was shown his insurance policy in effect from 2014 to 2015, a policy period prior to the period within which the accident took place, which contained a Contractors Exclusion for property owners. When asked whether he spoke to Mr. Pollack about it when he received the policy, he responded, "Not really. We didn't talk about details." He also testified he had no complaints about the policy when he received it and never inquired about exclusions of coverage in his policy.

Mrs. Gelstein testified that while she was involved in the procurement of insurance for the property prior to 2018, she had no recollection of procuring the insurance policy which was in effect in 2017, nor did she have any recollection of any conversations with anybody at MJP with regard to procuring the policy. She further testified that she reviewed the top sheet of the policy, where the summary is set forth. Prior to the incident at issue, she never had any complaints about her insurance coverage on the property, nor did she ever request any more comprehensive coverage.

B. Third-Party Plaintiff's Claim for Breach of Contract is Unsupportable

The Gelsteins did not produce any contract between themselves and MJP, the latter notes. The only agreement at issue in this litigation is the subject insurance policy, to which MJP is not a party or signatory. MJP owed no contractual duty to the Gelsteins and cannot be bound by the subject insurance policy (see Lipton v Unumprovident Corp., 10 AD3d 703 [2d Dept 2004] [defendant was not a party to the contract of insurance and thus owed no contractual duty to the plaintiff]).

New York law is also clear that "[a]n insurance policy is a contract between the insurer and the insured" (Bovis Lend Lease LMB, Inc. v Great Am. Ins. Co., 53 AD3d 140, 145 [1st Dept 2008]). As MJP was not a party to the subject insurance policy, and it is clear that the subject insurance policy was a contract between Mr. Gelstein and Lancer Indemnity Company and there was no other contract between Mr. Gelstein and MJP, Third-Party Plaintiff's claim for breach of [*3]contract against MJP must fail. MJP argues that it is well established that an insurance broker owes no fiduciary duty to a customer, and likewise has no continuing duty to advise, guide or direct a client to obtain additional coverage in the absence of a special relationship, as per Bovis Lend Lease LMB, Inc.

Furthermore, no fiduciary or special relationship has been alleged between the parties as Third-Party Plaintiff failed to allege specific facts supporting the existence of such a relationship (see Camacho v IO Practiceware, Inc., 136 AD3d 415 [1st Dept 2016]).

C. Third-Party Plaintiff's Claims are Barred Under "Duty to Read" Doctrine

MJP contends that Mr. Gelstein and his wife's testimony conclusively established that they each had the opportunity to read and review the policy at issue, which serves as a complete bar to any claim the Third-Party Plaintiff asserts for failure to procure insurance (see McGarr v Guardian Life Ins. Co. of Am., 19 AD3d 254, 256 [1st Dept 2005] [claim against broker for procuring an inadequate limit of insurance dismissed where the policyholder received the policy and thus was conclusively presumed to have read and understood its terms]; Busker on Roof Ltd. Partnership Co. v Warrington, 283 AD2d 376, 377 [1st Dept 2001] [finding that negligence/breach of contract claim against broker properly dismissed where policyholder "received the subject policy months before the accident, and is conclusively presumed to have known, understood and assented to its terms").

D. Third Party Plaintiff Has No Other Grounds for Relief Against MJP

(i) A Contribution Claim is Barred

MJP argues that under CPLR Article 14, the apportionment of damages pursuant to the statutory right of contribution requires evidence of a breach of a duty by the party from whom contribution is sought. Third-Party Plaintiff has failed to identify any duty owed by MJP to the Plaintiff sufficient to establish a claim of contribution, or that any such breach caused or augmented the injury for which contribution is sought (see Raquet v Braun, 90 NY2d 177 [1997]).

(ii) An Indemnification Claim is Barred

MJP argues that the Third-Party Plaintiff has not established the existence of a contract between Mr. Gelstein and MJP. Accordingly, to the extent Third-Party Plaintiff's cross-claim for indemnification is construed as one premised on contract, such claim fails as a matter of law. Furthermore, Third-Party Plaintiff has no claim for common law indemnification against MJP as "[c]ommon-law or implied indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party" (Schottland v Brown Harris Stevens Brooklyn, LLC, 137 AD3d 997, 998 [2d Dept 2016] [noting that where any potential liability would be the result of their own affirmative act, a party is not entitled to common-law or implied indemnification]). Furthermore, "[t]he key element of a cause of action for common-law indemnification is not a duty running from the indemnitor to the injured party, but rather, is a separate duty owed the indemnitee by the indemnitor" (Atanasoki v [*4]Braha Indus., Inc., 124 AD3d 705, 706 [2d Dept 2015]).

III. Opposition

A. Issues of Fact

Broadly, in opposition to MJP's motion, it is argued that there are issues of fact as to whether MJP had a special relationship with Mr. Gelstein.

Courts have recognized that when an insured reasonably believes, based on the broker's representations and conduct, that the broker is acting to protect their interests, the broker may be held to a higher standard of care (see Kimmell v Schaefer, 89 NY2d 257 [1996]). Also, a broker who has developed a long-standing relationship with an insured and is aware of the insured's reliance on their expertise may have a duty to advise the insured of changes in coverage needs or gaps in coverage, especially when the insured does not specify the details of coverage but instead relies on the broker's professional judgment (see Kritzer v Ventura Ins. Brokerage, Inc., 50 Misc 3d 832, [Sup Ct, NY County 2015]).

Third-Party Plaintiff argues that Mr. Gelstein relied on the expertise of MJP for approximately a decade and requested of MJP, "Keep us covered. Keep the same coverage." The testimony demonstrates that Mr. Gelstein did not approach the insurance transaction as a well-versed insured detailing specific coverage terms but rather relied on the broker's expertise to determine what coverage was appropriate for his property. Courts have repeatedly recognized that where an insured asks a broker to keep him "covered" and relies on the broker's assurances, such conduct supports the inference that the insured was relying on the broker's expertise regarding coverage needs (see Voss v Netherlands Ins. Co., 22 NY3d 728 [2014]).

Ultimately, Mr. Gelstein's testimony raises triable issues of fact as to the nature of the relationship and the broker's duties and whether a special relationship existed between the parties.

B. MJP Can Still be Held Liable in the Absence of a Written Contract

Secondly, Third-Party Plaintiff argues that MJP can still be held liable despite the absence of a written contract due to the existence of a "special relationship." Contrary to MJP's argument, the absence of a written contract does not preclude the existence of contractual duties between an insurance broker and an insured. New York law recognizes that agreements may be formed through conduct and a course of dealing (see Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397 [1977]). Where the broker agrees to obtain insurance coverage and the insured relies on that undertaking, the broker may be liable for failing to procure the requested or appropriate coverage. The special relationship consisted of annual renewals of the insurance, reliance on the broker, and communications with the broker which supports an implied agreement for the broker to have obtained the necessary coverage for Mr. Gelstein's needs as communicated and reasonably understood.

The parties' course of dealing over ten years, the procurement of multiple policies, and the payment of premiums all support the existence of a relationship giving rise to duties; a contract between the parties existed. The repeated course of dealings supports the inference that the broker was aware that the insured relied on its expertise to obtain appropriate coverage. Whether those duties extended beyond procuring specifically requested coverage is a question of fact that cannot be resolved on summary judgment.

C. The "Duty to Read Doctrine" Does not Void Liability

Courts hold that even though insurance brokers typically are not agents who can be defined as having a fiduciary role such as that of an attorney or doctor, on a case-by-case basis they can be imbued with this fiduciary relationship as it pertains to the relationship between the parties. 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.

In the case herein, the relationship between the Gelsteins and MJP cannot be ignored as it is the basis for the misrepresentation engaged in by MJP. Firstly, the relationship between the parties existed for an approximate 15-year period through which they not only established an ongoing business relationship but a continuing relationship of unwavering trust and respect. Further, MJP in this 15-year period held the superior position as the expert on the insurance policies procured for the clients, the Gelsteins, and because of their long and established 15 to 20 year relationship there existed a powerful influence on the part of MJP toward the clients.

IV. Discussion

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez v Prospect Hosp., 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so; mere expressions of hope are insufficient to raise a genuine issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).

"Generally, the law is reasonably settled on initial principles that 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]). [*5]Once a policy of insurance has been procured, an insurance broker owes no continuing duty to advise the customer (see id. at 273). Rather, the insured has a duty to read the policy of insurance, and such a duty generally bars later claims against a broker sounding in failure to procure insurance (see Busker on Roof Ltd. Partnership Co. v Warrington, 283 AD2d 376). As such, MJP made out a prima facie case of entitlement to summary judgment as a matter of law.

A general request for additional insurance coverage does not give rise to a continuing duty (see Moutafis Motors, Ltd. v MRW Group, Inc., 144 AD3d 1000, 1001 [2d Dept 2016] ("At most, the plaintiff made a general request for additional insurance coverage, which does not satisfy the requirement of a specific request for coverage"). Here, Third-Party Plaintiff fails to raise a triable issue of fact that Mr. Gelstein asked for additional comprehensive coverage which implicates a duty. Mr. Gelstein's deposition testimony contains as follows:

Q. My question is, did you ever ask for any specific coverage from Max Pollack?

A. No. I said, "Cover me. Sell me insurance," because that's how I dealt with him all those years." (NYSCEF Doc No. 217 at 63, lines 17-22.)

In the event that no common law duty exists, as a specific request for insurance coverage was not made, the law has a carve-out for special relationships (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152 [2006]). Where such a special relationship existed, "the broker may be liable for failing to advise or direct the client to obtain additional coverage even in the absence of a specific request" (Soundview Cinemas Inc. v Great Am. Ins. Group, 71 Misc 3d 493, 506 [Sup Ct, Nassau County 2021]). The Court of Appeals has described three exceptional situations which are (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 placed objectively reasonable insurance agents on notice that their advice was being relied on (see Voss v Netherlands Ins. Co., 22 NY3d at 735). Therefore, there are particular situations, on a case-by-case basis, in which an insurance agent, through their conduct or by express or implied contract, may be given additional duties separate from the ones fixed at the common law.

Here, Third-Party Plaintiff attempts to defeat summary judgment by evoking a special relationship between the Gelsteins and MJP. However, the record evidence works against Third-Party Plaintiff. The first situation leading to a special relationship does not exist. Mr. Gelstein only paid insurance premiums to the insurer and no additional compensation to MJP. There was no compensation for "consultation apart from payment of the premiums" (Voss v Netherlands Ins. Co., 22 NY3d at 738).

As for the second situation, Third-Party Plaintiff relies quite heavily on the holding in Voss v Netherlands Ins. Co., where the Court opined that there was a special relationship between a broker and the insured because, "there was some interaction regarding a question of [business interruption] coverage, with the insured relying on the expertise of the agent" (id. at 735). However, the facts in Voss go further than what was presented in Mr. Gelstein's deposition. Particularly, the Court notes that the broker in Voss "requested sales figures and other relevant [*6]data in order to calculate the proper level of coverage. When [the broker] later returned with a proposal that included $75,000 in business interruption insurance, Voss [the insured] avers that she questioned that amount and that [the broker] assured her that it was adequate based on his review of her business finances as well as the layout of the building." (Id. at 735-736.) The insured also testified that the broker repeatedly pledged that the brokerage firm would review coverage annually and recommend adjustments as her businesses grew (see id. at 736). In contrast, Mr. Gelstein's account of their conversation went as follows:

Q. Did you ask? Did you ask for more coverage?

A. I said, "Cover me with what I need. You're the insurance specialist here. You tell me what I need." I leaned to the suppliers because they're the experts. "What do I need to make sure that this is covered, that everything is covered and it's handled?" (NYSCEF Doc No. 217 at 61, line 21 through 62, line 5.)

Third-Party Plaintiff unjustifiably relies on the third situation leading to a special relationship based upon the continued renewal of insurance for about a decade. The Court in Murphy v Kuhn (90 NY2d 266) held that a 20-year relationship between the insured and the broker did not arise to the level of a special relationship despite the plaintiff's belief that there was a "special reliance and an affirmative duty to advise with regard to appropriate or additional coverage" (id. at 269).

Therefore, Third-Party Plaintiff's argument as to the existence of a special relationship remains unpersuasive. Moreover, the Gelsteins had a duty to read their policy but failed to do so. This inures to their detriment (see Busker on Roof Ltd. Partnership Co. v Warrington, 283 AD2d 376). There is no viable claim as a matter of law against MJP for broker negligence, failure to procure insurance, or breach of contract.

There was no duty of care owed by MJP to Plaintiff and, therefore, Third-Party Plaintiff is not entitled to contribution from MJP as a matter of law.

To the extent that Third-Party Plaintiff relies on a contract to support its third-party cause of action premised on indemnification, the Court finds that there is no contract. A party cannot obtain common law indemnification unless it has been held liable without proof of any negligence on its own part (see Mikelatos v Theofilaktidis, 105 AD3d 822 [2d Dept 2013]; McCarthy v Turner Constr., Inc., 17 NY3d 369 [2011]). There is no showing in these motion papers that the Gelsteins were free of negligence on their part. Moreover there is no showing of wrongdoing on the part of MJP.

Accordingly, it has not been shown that there is an issue of fact which would vitiate MJP's prima facie case of entitlement to summary judgment.

V. Conclusion

It is hereby ORDERED that Third-Party Defendant Max J. Pollack & Sons, Inc.'s motion to dismiss the third-party complaint is GRANTED. The third-party complaint is hereby [*7]dismissed in its entirety.