| Fireman's Fund Ins. Co. v Farrell |
| 2008 NY Slip Op 09951 [57 AD3d 721] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Fireman's Fund Insurance Company et al.,Respondents, v James P. Farrell, Jr., Appellant. |
—[*1] Lustig & Brown, Buffalo, N.Y. (Jonathan Schapp of counsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the defendant appeals, as limitedby his brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, J.), datedAugust 13, 2007, as denied his motion for summary judgment dismissing the complaint and grantedthose branches of the plaintiffs' cross motion which were pursuant to CPLR 3211 (b) to dismiss hisaffirmative defenses.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thosebranches of the plaintiffs' cross motion which were to dismiss the second, seventh, and twelfthaffirmative defenses and substituting therefor a provision denying those branches of the plaintiffs' crossmotion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
In May 1996 Jimmy Quiles commenced an action against Joseph Gazza to recover $5 million indamages for the injuries he sustained when he fell from a roof on Gazza's building (hereinafter the Quilesaction). In September 1996 Gazza commenced a third-party action against Quiles' employer, the SixG's Contracting Corp. (hereinafter Six G's), for common-law indemnification and contribution(hereinafter the Indemnity action).
The attorney for Six G's James P. Farrell, Jr. did not notify its workers' compensation carrier, theState Insurance Fund (hereinafter SIF), about the pending lawsuits until February 12, 1999, almost2½ years after the Indemnity action began and almost 1 year after the Supreme Court awardedpartial summary judgment in favor of Quiles on the issue of liability and in favor of Gazza [*2]on the issue of indemnification. Although SIF disclaimed coverage basedon the late notice, it contributed $400,000 toward the $1.1 million settlement of the Quiles action.Gazza's general liability carrier, the Fireman's Fund Insurance Co. (hereinafter Fireman's), contributedthe remaining $700,000.
Six G's subsequently assigned its claims against Farrell, inter alia, alleging legal malpractice toGazza and Fireman's, who commenced the present action. On a prior appeal, this Court affirmed thedenial of Farrell's motion to dismiss the complaint for failure to state a cause of action and the denial ofthe plaintiffs' cross motion for summary judgment (see Fireman's Fund Ins. Co. v Farrell, 289AD2d 286 [2001]).
In an action to recover damages for legal malpractice, a plaintiff must prove that the attorney "failedto exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legalprofession" and that the attorney's breach of this duty proximately caused actual and ascertainabledamages (McCoy v Feinman, 99 NY2d 295, 301 [2002] [internal quotation marks andcitation omitted]). To establish the element of causation, the plaintiff must show that he or she wouldhave prevailed in the underlying action or would not have incurred any damages but for the attorney'snegligence (see Rudolf v Shayne, Dachs,Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Barnett v Schwartz, 47 AD3d 197 [2007]).
To succeed on a motion for summary judgment dismissing a cause of action alleging legalmalpractice, the attorney must establish, through the submission of evidentiary proof in admissible form,that the plaintiff is unable to prove at least one of the essential elements of the cause of action (seeSuydam v O'Neill, 276 AD2d 549 [2000]; Ostriker v Taylor, Atkins & Ostrow, 258AD2d 572 [1999]).
Farrell contends that he is entitled to summary judgment because the plaintiffs, the assignees of hisformer client Six G's, cannot prove that his failure to timely notify SIF of the Indemnity action causedthe alleged damages. Specifically, Farrell contends that he is not liable for legal malpractice becauseSIF did not provide timely notice of its disclaimer and, even if it did, it then waived the disclaimer by theinconsistent acts of negotiating and ultimately settling the Quiles action.
The reasonableness of a delay in disclaiming coverage is measured from the time that the insurer isaware of sufficient facts to disclaim (see North Country Ins. Co. v Tucker, 273 AD2d 683[2000]). Here, there is a genuine issue of fact as to whether Farrell's letter dated February 12, 1999,and the pleadings annexed thereto, provided sufficient information regarding the commencement date ofthe Indemnity action to warrant an earlier disclaimer on the ground of late notice. Similarly, there is agenuine issue of fact as to whether SIF's participation in the settlement of the Quiles action constituted aclear manifestation of the intent to relinquish its right to disclaim coverage (see Gilbert Frank Corp.v Federal Ins. Co., 70 NY2d 966 [1988]). Inasmuch as Farrell failed to meet his burden of proofon the timeliness and waiver issues, the Supreme Court properly denied his motion for summaryjudgment dismissing the complaint.
The same issues of fact precluded the court from granting those branches of the plaintiff's crossmotion which were pursuant to CPLR 3211 (b) to dismiss the second, seventh, and twelfth affirmativedefenses, which incorporate the documentary evidence as it relates to the issues of waiver andproximate cause (see Fleckenstein v Nehrbas, 21 AD2d 889 [1964]). Pursuant to CPLR3211 (b), a "party may move for judgment dismissing one or more defenses, on the ground that adefense is not stated or has no merit." In reviewing a motion to dismiss an affirmative defense, the courtmust [*3]liberally construe the pleadings in favor of the party assertingthe defense and give that party the benefit of every reasonable inference (see Warwick v Cruz,270 AD2d 255 [2000]; Abney v Lunsford, 254 AD2d 318 [1998]). Moreover, if there isany doubt as to the availability of a defense, it should not be dismissed (see Becker v Elm A.C.Corp., 143 AD2d 965 [1988]).
The Supreme Court properly granted those branches of the plaintiffs' cross motion which were todismiss the remaining 11 affirmative defenses, which merely plead conclusions of law without anysupporting facts (see Bentivegna v Meenan Oil Co., 126 AD2d 506 [1987]; Glenesk vGuidance Realty Corp., 36 AD2d 852 [1971]). Mastro, J.P., Florio, Eng and Chambers, JJ.,concur. [See 2007 NY Slip Op 32611(U).]