Sep 13th, 2016

FKB’s Andrew Jones and Florence Lishansky win pre-answer Motion to Dismiss in an insurance agent/broker liability case

FKB successfully obtained pre-answer dismissal on a motion to dismiss from Justice Oing in New York State Supreme Court, New York County (Commercial Division).  FKB’s pre-answer motion to dismiss pursuant to CPLR §§ 3211(a)(1) and (a)(7) argued, inter alia, that the complaint failed to state a cause of action. Following extensive oral argument, Justice Oing dismissed the case from the bench in its entirety.

The case concerned a stolen piece of art – worth approximately $1M – painted by famed artist, Jasper Johns, best known for his work, Flag.  Johns made recent headlines after his long-time assistant was convicted of fraudulently conveying multiple pieces of art after pretending they had been gifted to him.  See

In FKB’s case, the Claimant (a high-end Manhattan art gallery) sought coverage under its All Risk insurance policy essentially complaining that the Gallery now owed the defrauded purchaser the value of the stolen piece under a guarantee agreement (the piece having now been returned to Mr. Johns by the FBI, but the money having disappeared).  FKB argued on behalf of the Gallery’s insurance Broker and Justice Oing agreed that the Broker procured exactly the type of insurance coverage requested of it; that the Gallery had never requested title insurance (which is different to general insurance), despite the Gallery being sophisticated and knowledgeable about such matters; and that the Broker did not have a “special relationship”/duty to seek out and insure items (despite a 15-year relationship with the Gallery).

Thanks to our paralegal, Ashley Glazewski, for assisting in researching the arguments and generally helping prepare the winning motion papers.

If you have any questions about this decision, or the defense of insurance agents and practitioners in general, please contact Andrew R. Jones or Florence Lishansky.