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Insurance Broker Brought Action Against its Former Administrative and Processing Agent, and Agent's President, Alleging that Agent had Breached its Contract to Provide Administrative and Processing Services – Multiple Decisions, Victory for Itkowitz Client

Zapin v. CBS Coverage Group, Inc.
(Appellate Division, First Dept. January 22, 2008)

Defendants-appellants-respondents motion for reargument of or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court entered on September 27, 2007 denied.  Link to Full Text of Decision

Zapin v. CBS Coverage Group, Inc.
(43 A.D.3d 798, 844 N.Y.S.2d 189, First Dept. September 27, 2007)

Insurance broker brought action against its former administrative and processing agent, and agent's president, alleging that agent had breached its contract to provide administrative and processing services. Defendants counterclaimed for commissions allegedly due, and president also counterclaimed for amounts that she and her prior brokerage entity had expended to settle law suits brought by equipment vendors against both her and broker. The supreme Court, New York County, Helen E. Freedman, J., after a bench trial, awarded broker $48,678 plus interest, and awarded president $35,000. Parties cross-appealed. The supreme Court, Appellate Division, held that: (1) defendants were entitled to a credit for monies the insurance companies had deducted from premiums on account of returned commissions or cancelled policies prior to the effective date of the agency agreement; (2) defendants were entitled to a credit from broker for earned premiums that agent had paid the insurance carrier but never received reimbursement from broker; (3) defendants were not entitled to a credit for certain future accounts receivable; and (4) agent was entitled to prejudgment interest based on broker's breach of contract. Appellate Division affirmed and modified and matter remanded for a determination of prejudgment interest. Appellate Division held that agency and its president were entitled to a credit for monies the insurance companies had deducted from premiums on account of returned commissions or cancelled policies prior to the effective date of the agency agreement. Appellate Division held that agency and its president were entitled to a credit from broker for earned premiums that agent had paid the insurance carrier but for which agent had never received reimbursement from broker. Appellate Division held that agency and president were not entitled to a credit for certain future accounts receivable, where those amounts were not yet paid and no services had been provided for those installments. Appellate Division held that former administrative and processing agent for insurance broker was entitled to prejudgment interest based on broker's breach of parties' contract, where broker failed promptly to sign a commingling agreement, and diverted payments owed to agent to its own account.  Link to Full Text of Decision

Zapin v. CBS Coverage Group, Inc.
(Sup. Ct. NY 6/12/2006)

Zapin v. CBS Coverage Group, Inc.
(26 AD3d 231, 1st Dept. 2006)

Plaintiff brought action against defendant for tortious interference with contract. Defendant filed counterclaims for breach of contract. The Supreme Court, New York County, Helen E. Freedman, J., denied plaintiff's motion for partial summary judgment, and granted the defendants' cross motion for summary judgment. Plaintiff appealed. The Supreme Court, Appellate Division, held that: (1) genuine issue of fact as to whether defendant continued to perform under contract precluded entry of summary judgment on defendant's breach of contract counterclaims, and (2) there were not sufficient facts in record on summary judgment to establish tortious interference with contract claim. Appellate Division affirmed, holding that genuine issue of fact as to whether defendant continued to perform under contract, even after plaintiff allegedly terminated contract wrongfully, precluded entry of summary judgment on defendant's breach of contract counterclaims. Also, holding that there were not sufficient facts in record on summary judgment, from plaintiff's pleading, or in plaintiff's cursory affidavit, to meet heightened standard of showing that defendant had, individually, acted outside her corporate capacity, maliciously and for personal profit at plaintiff's expense, as required to support tortious interference with contract claim.  Link to Full Text of Decision

Zapin v. CBS Coverage Group, Inc.
(Sup. Ct. NY 6/8/05)

Partial summary judgment for Defendants on tortious interference with contract or contractual relations claims, which require elements missing here, to wit: the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third party's breach of contract without justification, actual breach and damages. The court held that intentional interference was required, not merely an intrusion that is negligent or incident to some other lawful purpose. Plaintiff attributed Defendant's actions, including her alleged direction to co-defendant to withhold money due to Plaintiff, to a personal animosity that Defendant had toward Plaintiff's principal. But Plaintiff provided no support this accusation. Plaintiff's pleading of prima facie tort was likewise deficient. Plaintiff had advanced no non-speculative basis to believe that additional discovery might yield evidence warranting a different disposition.  Link to Full Text of Decision

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