Israel v. Walter Kaye Associates, Inc.
| Decision Date | 12 December 1988 |
| Citation | 145 A.D.2d 467,535 N.Y.S.2d 103 |
| Parties | Steven M. ISRAEL, et al., Respondents, v. WALTER KAYE ASSOCIATES, INC., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Glen Feinberg and B. Carol Lenti, of counsel), for appellant.
Rosen Rudd Kera Graubard & Hollender, New York City (Martin S. Kera, of counsel), for respondents.
Before MOLLEN, P.J., and KOOPER, SPATT and HARWOOD, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages grounded in negligence by an insurance broker, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Becker, J.), entered January 26, 1988, as granted the plaintiffs' motion to strike its affirmative defense of res judicata and denied its cross motion for summary judgment dismissing the complaint as barred by the doctrine of res judicata.
ORDERED that the order is reversed insofar as appealed from on the law with costs, that branch of the motion which was to dismiss the affirmative defense of res judicata is denied, the cross motion is granted and the complaint is dismissed.
In January 1985 the respondent Steven Israel, the sole shareholder of Park Plaza Corp., requested by telephone that his broker obtain fire insurance coverage for certain real property owned by the corporation. He was told that the property would receive immediate coverage in the amount of $200,000 for the dwelling and $50,000 for the personal property contents. However, he was also advised that he would have to sign certain papers at the broker's office before he could obtain the full coverage which he desired of $450,000 and $250,000 respectively. Sometime during their conversation, the matter of whether the premises were occupied or vacant was also discussed.
In the week that followed, the premises and its contents were damaged by two fires. It was claimed that the loss exceeded $1,000,000. When Israel and the corporation attempted to collect under the terms of the policy, the insurance company disclaimed coverage on the grounds that a material misrepresentation as to the occupancy of the premises had been made. In response to the disclaimer, the respondents, inter alia, commenced an action against the appellant, claiming that the latter had breached its contract by securing a policy with limits of only $200,000 for the real property and $50,000 for the personal property rather than for $450,000...
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