Femia v. Graphic Arts Mut. Ins. Co.

• Decision Date: 28 November 2012
• Citation: 2012 N.Y. Slip Op. 08091,100 A.D.3d 954,954 N.Y.S.2d 632
• Court: New York Supreme Court — Appellate Division
• Parties: Sandro FEMIA, plaintiff-respondent, v. GRAPHIC ARTS MUTUAL INSURANCE CO., defendant-respondent, et al., defendant, Dayton & Osborne, LLC, appellant.

100 A.D.3d 954
954 N.Y.S.2d 632
2012 N.Y. Slip Op. 08091

Sandro FEMIA, plaintiff-respondent,
v.
GRAPHIC ARTS MUTUAL INSURANCE CO., defendant-respondent, et al., defendant,
Dayton & Osborne, LLC, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 28, 2012.

[954 N.Y.S.2d 633]

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Nancy Quinn Koba and Alice Leslie Brodie of counsel), for appellant.

Weg & Myers, P.C., New York, N.Y. (Joshua L. Mallin and Rebecca A. Barrett of counsel), for plaintiff-respondent.

Faust Goetz Schenker & Blee LLP, New York, N.Y. (Christopher B. Kinzel of counsel), for defendant-respondent.

ANITA R. FLORIO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

[100 A.D.3d 954]In an action, inter alia, to recover damages for breach of an insurance contract, the defendant Dayton & Osborne, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Spinner, J.), dated December 30, 2010, as denied its motion for summary judgment dismissing the fourth and fifth causes of action and the cross claims of [100 A.D.3d 955]the defendant Graphic Arts Mutual Insurance Co., insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents, and the motion of the defendant Dayton & Osborne, LLC, for summary

[954 N.Y.S.2d 634]

judgment dismissing the fourth and fifth causes of action and the cross claims of the defendant Graphic Arts Mutual Insurance Co., insofar as asserted against it is granted.

The Supreme Court improperly declined to consider the deposition transcripts submitted by the defendant Dayton & Osborne, LLC (hereinafter Dayton), in support of its motion for summary judgment where the transcripts were certified by the reporter and their accuracy was not challenged ( see Pevzner v. 1397 E. 2nd, LLC, 96 A.D.3d 921, 947 N.Y.S.2d 543;Boadu v. City of New York, 95 A.D.3d 918, 944 N.Y.S.2d 265;Zalot v. Zieba, 81 A.D.3d 935, 917 N.Y.S.2d 285;see also Rodriguez v. Ryder Truck, Inc., 91 A.D.3d 935, 936, 937 N.Y.S.2d 602;Ashif v. Won Ok Lee, 57 A.D.3d 700, 868 N.Y.S.2d 906).

“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” ( Murphy v. Kuhn, 90 N.Y.2d 266, 270, 660 N.Y.S.2d 371, 682...