The insurer alleges that it would not have issued the disability policy in question had the application therefor, prepared by the broker, not omitted the fact that the broker had procured a similar policy for the insured from another insurer. The insurer further alleges that it is obligated to make payments under the policy, and seeks in this action to recover those payments from the broker. The motion court correctly held that the cause of action for indemnification is subject to a six-year limitations period that began to run, at the earliest, when the insurer made its first payment to the insured two years before it instituted the action, "whatever the underlying breach of duty for which indemnification is sought" (McDermott v. City of New York, 50 N.Y.2d 211, 218). However, the motion court erred in dismissing the cause of action for indemnification on the ground "there is no basis to argue that [the broker] should be responsible for making disability payments to [the insured]". "[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is "a separate duty owed the indemnitee by the indemnitor'" (Raquet v. Braun, 90 N.Y.2d 177, 183, quoting Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 690). At the least, the broker, as the insurer's agent, owed the insurer a duty to report truthfully with respect to the information requested on the applications, which specifically included the existence of other disability policies held by the prospective insured. Accordingly, we modify to reinstate the cause of action for indemnification. The cause of action for a declaration as to the broker's obligation to indemnify the insurer is unnecessary. The insurer's motion to renew, in which the motion court, in effect, considered new evidence tending to show that the broker's omission of the information from the application was deliberate, and offered for the purpose of estopping the broker from asserting the Statute of Limitations, is now academic since the insurer does not claim error with respect to the dismissal of its causes of action for negligence, breach of contract and breach of fiduciary duty as time-barred, and since the broker has no Statute of Limitations defense with respect to the cause of action for indemnification.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.