Bond v Progressive Ins. Co., 2011 NY Slip Op 01552 (App. Div., 3rd 2011)
This Court has not previously addressed the specific question of the time of accrual of a cause of action against an insurance broker for failing to give proper notice to an insurer of a claim against an insured, but the Appellate Division, First Department has held that such a claim accrues when injury results from the broker's failure, rather than at the time of the failure itself (see Lavandier v Landmark Ins. Co., 26 AD3d 264, 264 ). This Court has previously held that a comparable cause of action arising out of an insurance broker's breach of the common-law duty to procure coverage requested by an insured sounded in tort and did not accrue at the time of the broker's breach, but when the insured's vehicle was involved in an accident for which the coverage was inadequate (see Venditti v Liberty Mut. Ins. Co., 6 AD3d 961, 962 ; see also Chase Scientific Research v NIA Group, 96 NY2d at 30). We perceive no reason to reach a different conclusion in the current circumstances. [*3]
It is well established that a tort claim accrues when it "becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint" (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 ). Accordingly, when damage is an essential element of a tort, the claim does not accrue at the time of the defendant's wrongful act or the plaintiff's discovery of the injury, but when harm is sustained (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 140 ; Kronos, Inc. v AVX Corp., 81 NY2d at 94; Schultes v Kane, 50 AD3d 1277, 1278 ). The injury underlying plaintiff's claim against HEG was not sustained at the time of HEG's alleged breach, but when that breach later caused harm, in the form of the judgment entered against the O'Rourkes. "Damages are a necessary element of a negligence claim which must be pleaded and proven" (Siler v Lutheran Social Servs. of Metro. N.Y., 10 AD3d 646, 648  [citations omitted]). The O'Rourkes could not have pleaded or proven any harm arising from HEG's alleged breach of duty prior to the April 2008 judgment, and any negligence claim they might have sought to assert against HEG would have been subject to dismissal as premature (see Cutro v Sheehan Agency, 96 AD2d 669 ; see also Matter of Martinez v State of New York, 62 AD3d 1225, 1226-1227 ). As the O'Rourkes' claim against HEG, later assigned to plaintiff, did not become enforceable until the judgment against them was entered, plaintiff's action was timely, and Supreme Court properly denied HEG's motion to dismiss the complaint against it.