| Schorsch v Moses & Singer LLP |
| 2009 NY Slip Op 02293 [60 AD3d 557] |
| March 26, 2009 |
| Appellate Division, First Department |
| Margaret R. Schorsch et al., Appellants, v Moses & SingerLLP, Respondent. |
—[*1] Landman Corsi Ballaine & Ford P.C., New York (Louis G. Corsi of counsel), forrespondent.
Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered July 10, 2008,dismissing the complaint, and bringing up for review an order, same court and Justice, enteredJune 20, 2008, which granted defendant's motion to dismiss, unanimously affirmed, with costs.Appeal from the aforesaid order unanimously dismissed, without costs, as superseded by appealfrom the judgment.
To prevail in a legal malpractice suit, the client must prove negligence on the part of herattorneys, and that she would have prevailed on the merits but for that negligence (see e.g.Davis v Klein, 88 NY2d 1008 [1996]). Defendant made a prima facie showing ofentitlement to summary judgment through sworn statements and documentary evidence that theunderlying defendant insurer had properly denied plaintiffs' claim pursuant to the dishonest actsexclusion, thus rendering any subsequent claim against the insurer futile. In response, plaintiffsfailed to present any admissible evidence to raise a disputed issue of material fact as to thefutility of the underlying insurance claim.
The court properly found that Margaret Schorsch's affidavit failed to create an issue ofmaterial fact as to whether her brother David was responsible for the 1995 inventory loss, orwhether he was an "authorized representative" of M.R.S. Antiques so as to defeat coverage underthe "dishonest acts" exclusion in the policy. Her affidavit contradicts detailed statements shepreviously made under oath in a 1995 case she brought against David wherein she alleged thathe, as an integral member of the family business, had stolen company inventory and was thusresponsible for the loss. This contradiction negated the authority of her affidavit as a basis fordefeating defendant's motion for summary judgment (see Sugarman v Malone, 48 AD3d 281 [2008]).
Plaintiffs' assertion that the insurance policy did not contain an exclusion for dishonest actsis contrary to the record evidence. It is true that the insurer's counsel, in the February 14, 1997letter denying coverage, mistakenly cited to a different policy it had issued to M.R.S. Antiques.However, the slight differences between the language of the fine arts coverage dishonest actsexclusion and the one incorrectly cited by counsel in the letter do not affect the [*2]material terms of the applicable exclusion. The basic scope is thesame: coverage is excluded for dishonest acts by "you" or the insured's "employees" or"authorized representatives" or "anyone entrusted with the property." Since the inventory losswas caused by the dishonest acts of David, who qualified as an authorized representative ofM.R.S. Antiques or a person otherwise entrusted with the missing property, coverage wasproperly denied. Concur—Andrias, J.P., Gonzalez, Acosta and Renwick, JJ. [See20 Misc 3d 1140(A), 2008 NY Slip Op 51804(U).]