Motion to Dismiss; Timely Service of Complaint CPLR 3012(b); Extension of Time to Complete Service CPLR 3012(d); Breach of Contract; Negligence
By: Julie Lavoie | Senior Staff Writer
In August 2016, Plaintiff served the entity and agent that sold her late husband a life insurance policy, SelectQuote Insurance Services and Charan J. Singh (hereinafter “Defendants”) with a summons with notice indicating that she would be alleging claims of: (1) breach of contract for the failure to pay life insurance proceeds under her husband’s policy upon his death; and (2) negligence for selling her husband a new policy after his original policy lapsed for non-payment rather than advising him to seek reinstatement of the lapsed policy. On September 27, 2016, Defendants filed a notice of appearance and demanded service of the complaint. Plaintiff did not serve the complaint until December 14, 2016.
Based on Plaintiff’s failure to timely serve a complaint, Defendants moved to dismiss the action pursuant to CPLR 3012(b). Plaintiff cross-moved for an extension of time to complete service pursuant to CPLR 3012(d) claiming that she had: (1) a reasonable excuse for delay, namely the need to conduct further research to ascertain the identity of the correct defendant or defendants and confirm that the appearing entity was the entity that sold the life insurance policy to plaintiff’s husband; and (2) a meritorious claim. In opposition, Defendants contend Plaintiff’s excuse for the delay was a mere pretext for inexplicable failure to meet the deadline. As evidence, Defendants provided their notice of appearance and demand for a complaint, which plainly identified them as the correct entity thus negating plaintiff’s need for research and that the complaint Plaintiff ultimately served was not limited to allegations against the “correct” defendant.
The Court denied Plaintiff’s cross motion and granted defendant’s motion to dismiss the complaint in its entirety. First, the Court agreed with defendants’ argument regarding the unreasonableness of the plaintiff’s excuse for delay finding that “this does not seem to be a case where plaintiff lacked sufficient information at the time when the summons was served to assert the general allegations that eventually were put into her complaint. Second, the Court found that even assuming plaintiff provided a satisfactory excuse for delay, her affidavit of merit fell “well short” of containing facts sufficient to establish a prima facie case of negligence because: (1) it is well-settled that agents and brokers have no common-law duty to advise their clients to obtain additional or different coverage and the complaint does not allege facts demonstrating defendants agreed to assume duties in addition to those fixed at common law; and (2) even if Defendants were under a duty to offer advice regarding the option to pursue reinstatement of the lapsed policy, that duty was owed to plaintiff’s late husband, not plaintiff who brought an action in her own right. Moreover, an insurance broker or agent generally does not owe duties of care to non-customers with whom it is not in privity.