The motion court erred in finding that the plaintiff relatives failed to set forth admissible evidence sufficient to raise a triable issue of fact as to the claim for breach of fiduciary duty. The court, in considering the affidavit of plaintiff Frank Fortino, found that it defeated summary judgment as to him but rejected as hearsay his statements supporting the claims of the plaintiff relatives. It failed to give due consideration to their verified pleadings which, pursuant to CPLR 105(u), "may be utilized as an affidavit whenever [an affidavit] is required." It also failed to consider non-hearsay statements in affidavits and depositions.
In our view, the record is sufficient in these particular circumstances to raise a factual question as to the existence of an "[e]xceptional and particularized situation[s] . . . in which [an] insurance agent[s], through [his] conduct or by express or implied contract with customers and clients . . . assume[d] or acquire[d] duties in addition to those fixed at common law" (Murphy v. Kuhn, 90 N.Y.2d 266, 272).
Hence, for procedural reasons we reinstate the action as to these plaintiffs. By doing so, though, we are not addressing the main substantive claim regarding whether defendants owed plaintiffs a fiduciary duty, insofar as no cross appeal was taken by defendants from that part of the order that did not dismiss as to plaintiff Frank Fortino.
Thus, the record in this matter contained sufficient evidence to raise triable issues of fact as to whether Hersh assumed the role of an investment advisor to the plaintiff relatives, whether a fiduciary relationship developed between them and Hersh, and, if so, whether Hersh breached his concomitant duties.
All concur except Andrias, J. who dissents in a memorandum as follows:
ANDRIAS, J. (dissenting)
I would search the record and modify the order appealed from only to the extent of granting defendants-respondents' motion for summary judgment dismissing plaintiff Frank Fortino's remaining cause of action for breach of fiduciary duty and would otherwise affirm.
It is well-settled law that insurance brokers or agents do not generally owe a fiduciary duty to the insured (Murphy v. Kuhn, 90 N.Y.2d 266) and, as this Court has specifically recognized, "[n]o special relationship of trust or confidence arises out of an insurance contract between the insured and the insurer; the relationship is legal rather than equitable" (Batas v. Prudential Ins. Co. of Am., 281 A.D.2d 260, 264). Nevertheless, the Court of Appeals has acknowledged that "[e]xceptional and particularized situations may arise in which insurance agents, through their conduct or by express or implied contract . . . may assume or acquire duties in addition to those fixed at common law" (Murphy, 90 N.Y.2d, at 272).
However, no such situation arose in this case. In wining and dining the plaintiff and his family, defendant Hersh was practicing the art of salesmanship and did not, by his actions, assume or acquire duties above and beyond those imposed by common law. Plaintiffs have failed to demonstrate how their relationship with defendant Hersh "differ[ed] from that of a reasonable consumer" and was anything more than purely contractual (see Batas, supra at 264); Hersh's mere "superior knowledge of [a] product" is not enough to create a fiduciary relationship ( id.).
Accordingly, in the absence of any allegations establishing an "exceptional situation" that transformed defendant Hersh from salesman to fiduciary, plaintiff Frank Fortino's cause of action for breach of fiduciary duty should be dismissed. Furthermore, inasmuch as his relatives' claimed fiduciary relationship is identical to his, their cause of action for breach of fiduciary duty was properly dismissed without regard to the adequacy of their opposition to defendants' motion.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.