705 N.Y.S.2d 56
270 A.D.2d 330, 2000 N.Y. Slip Op. 02576
(Cite as: 705 N.Y.S.2d 56)

Private sports club which had sustained losses from damage to properties it owned during storm which were not completely covered by insurance brought suit against insurance brokerage agency which arranged its insurance coverage, asserting claims for negligence, breach of contract, and negligent misrepresentation. The Supreme Court, Westchester County, Nastasi, J., entered judgment on jury verdict for agency. Club appealed. The Supreme Court, Appellate Division, held that: (1) testimony of brokers retained as experts by club regarding availability of additional flood insurance related to an essential element of claim, and was improperly excluded; (2) club was entitled to two-day continuance after its expert was unexpectedly disqualified; and (3) whether club was in special relationship with agency giving rise to heightened duty was issue for jury.

Reversed, and new trial granted.

[1] Evidence k512
157k512

Testimony of insurance brokers retained as expert witnesses by private sports club regarding availability of additional flood insurance for property owned by club related to an essential element of club's negligence action against insurance brokerage agency which arranged club's assorted insurance needs, and thus was admissible.

[2] Pretrial Procedure k719
307Ak719

Private sports club which brought negligence action against insurance brokerage agency which had arranged club's assorted insurance needs was entitled to two- day continuance to present new underwriting expert it had been required to retain in midtrial after court unexpectedly disqualified club's expert witnesses.

[3] Witnesses k330(1)
410k330(1)

Private sports club which brought suit for negligence and breach of contract against insurance brokerage agency which arranged club's assorted insurance needs, based on club's failure to procure adequate insurance to cover damage to club property caused by storm, was entitled to cross-examine agency's employees regarding their efforts to obtain additional flood insurance shortly after storm, in order to impeach agency's credibility.

[4] Insurance k1673
217k1673

Whether insurance brokerage agency which arranged assorted insurance needs of private sports club was in a special relationship with club, and thus had heightened duty to advise club regarding its insurance coverage, was issue for jury in negligence action brought after insurance policies procured by agency failed to adequately cover damage to club property caused by storm.

[5] Insurance k1671
217k1671

Insurance brokerage agency which arranged assorted insurance needs of private sports club had no special duty of care to provide adequate business interruption coverage for club, and adequate coverage for clubhouse and bathhouses owned by club, where club's owners did not discuss coverage for those items with agency. *56 Weg & Myers, P.C., New York, N.Y. (Dennis T. D'Antonio and Joshua Mallin of counsel), for appellant.

Lustig & Brown, LLP, New York, N.Y. (Robert M. Sullivan of counsel), for respondent.

LAWRENCE J. BRACKEN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO and SANDRA J. FEUERSTEIN, JJ.

*57 MEMORANDUM BYTHE COURT.

In an action to recover damages for negligence, breach of contract, and negligent misrepresentation, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Nastasi, J.), entered November 27, 1998, which, upon a jury verdict, is in favor of the defendant and against it, dismissing the complaint.

ORDERED that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.

The plaintiff, Shenorock Shore Club, Inc. (hereinafter Shenorock), is a private beach and tennis club located in Rye on a peninsula between Milton Harbor and Long Island Sound. The defendant, Rollins Agency, Inc. (hereinafter Rollins) is an insurance brokerage agency which had been arranging Shenorock's assorted insurance needs since 1986. During a meeting between officers of Shenorock and Rollins in June 1992, various aspects of Shenorock's insurance were discussed. According to Shenorock, Rollins represented that Shenorock was not eligible for any additional primary Federally-underwritten flood insurance, or any commercially-marketed excess flood insurance, on its main Clubhouse and associated bathhouses. Shenorock also claims that Rollins failed to advise it to insure various other structures on its property, and that Rollins sold Shenorock $500,000 in business interruption coverage with a high coinsurance requirement, when similar insurance without coinsurance was available. On December 11, 1992, a storm damaged Shenorock's property, causing approximately $2 million in damages, of which its insurance covered roughly half. Shenorock sued Rollins for the sums its insurance did not cover, alleging breach of contract, negligence, and negligent misrepresentation.

Prior to trial the Supreme Court ruled, as a matter of law, that Rollins had a special relationship with Shenorock, and therefore it had a heightened duty to advise Shenorock regarding its insurance coverage (see, Murphy v. Kuhn, 90 N.Y.2d 266, 660 N.Y.S.2d 371, 682 N.E.2d 972). After a trial on the issue of liability, the jury returned a verdict in favor of Rollins. We reverse and order a new trial.

[1][2] The Supreme Court erred in refusing to allow testimony by Shenorock's expert witnesses, two insurance brokers, regarding the availability of additional flood insurance in 1992--an essential element of Shenorock's case (see, e.g., Edgewater Apts. v. Flynn, 216 A.D.2d 53, 627 N.Y.S.2d 385). In addition, the Supreme Court should have granted Shenorock the two- day continuance it requested to present its new underwriting expert, whom Shenorock had been required to retain in midtrial because of the unexpected ruling by the court disqualifying Shenorock's expert witnesses (see, e.g., Romero v. City of New York, 260 A.D.2d 461, 688 N.Y.S.2d 226; Evangelinos v. Reifschneider, 241 A.D.2d 508, 661 N.Y.S.2d 232; Balogh v. H.R.B. Caterers, 88 A.D.2d 136, 452 N.Y.S.2d 220).

[3] Shenorock was also improperly prevented from impeaching the credibility of Rollins when the court precluded it from cross-examining employees of Rollins regarding their efforts to obtain additional flood insurance for Shenorock shortly after the December 1992 storm (see, Hill v. Arnold, 226 A.D.2d 232, 640 N.Y.S.2d 892; see also, People v. Wise, 46 N.Y.2d 321, 327, 413 N.Y.S.2d 334, 385 N.E.2d 1262; People v. Bazalar, 211 A.D.2d 839, 621 N.Y.S.2d 224)

[4] The Supreme Court erred in ruling, as a matter of law, that there was a special relationship between Shenorock and Rollins. At the new trial, the Supreme Court should submit to the jury the issue of whether, under the factual circumstances of this case, Rollins had a special relationship with Shenorock, such that it assumed or acquired duties in addition to *58 those fixed at common law (see, e.g., Murphy v. Kuhn, supra; M & E Mfg. Co. v. Frank H. Reis, Inc., 258 A.D.2d 9, 692 N.Y.S.2d 191; see also, Kimmell v. Schaefer, 89 N.Y.2d 257, 260, 652 N.Y.S.2d 715, 675 N.E.2d 450).

[5] The Supreme Court, however, properly dismissed Shenorock's causes of action to recover for damage to buildings other than the clubhouse and the north and south bathhouses, and its cause of action to recover damages based upon the failure of Rollins to obtain adequate business interruption coverage. Shenorock's officers admittedly did not discuss those items of coverage with Rollins. Accordingly, there is no "identifiable source of a special duty of care" regarding them (Murphy v. Kuhn, supra, at 270, 660 N.Y.S.2d 371, 682 N.E.2d 972).