FIREMAN'S FUND INSURANCE COMPANY v. Farrell
| Decision Date | 10 December 2001 |
| Citation | 289 A.D.2d 286,734 N.Y.S.2d 217 |
| Court | New York Supreme Court — Appellate Division |
| Parties | FIREMAN'S FUND INSURANCE COMPANY et al., Respondents-Appellants,<BR>v.<BR>JAMES P. FARRELL, JR., Appellant-Respondent. |
Santucci, J. P., Goldstein, Townes and Cozier, JJ., concur.
Ordered that the order is affirmed, without costs or disbursements.
The defendant James P. Farrell, Jr., represented Six G's Contracting Corp. (hereinafter Six G's) in connection with a personal injury action based on provisions of the Labor Law. Six G's employee Jimmy Quiles was injured on a construction project in January 1996, and he commenced an action against the owner of the building under construction, Joseph Gazza (hereinafter the Quiles action). Gazza in turn commenced a third-party action for common-law indemnification against Six G's. Although Quiles collected Workers' Compensation benefits under a policy issued to Six G's by the State Insurance Fund (hereinafter SIF), Farrell did not notify SIF of the third-party action until February 1999. By that time, the Supreme Court had granted partial summary judgment to Quiles on the issue of liability under Labor Law § 240 (1), and summary judgment to Gazza on his third-party action against Six G's. SIF disclaimed coverage of the third-party action.
Gazza ultimately settled the Quiles action for $1.1 million. SIF contributed $400,000 to the settlement, although it refused to withdraw its disclaimer. Gazza's general liability insurer, Fireman's Fund Insurance Company (hereinafter Fireman's), provided the funds for the remainder of the settlement. Six G's assigned its legal malpractice claim against Farrell to Gazza and Fireman's (hereinafter the plaintiffs) in exchange for the plaintiffs' agreement that they would not seek to satisfy the judgment in the third-party indemnification action from the assets of Six G's or its president.
The plaintiffs commenced this legal malpractice action as assignees of Six G's in which they alleged that Farrell was negligent in failing to timely notify SIF of the third-party claim against Six G's and that, as a result, Six G's lacked insurance to cover the judgment obtained against it by Gazza. We conclude that the Supreme Court properly denied Farrell's motion to dismiss the complaint, as it sufficiently stated the elements of an action to recover damages for legal malpractice (see, Cannistra v O'Connor, McGuinness, Conte, Doyle, Oleson & Collins, 286 AD2d 314).
The documentary evidence Farrell presented failed to satisfy his burden of establishing that the plaintiffs would be unable to prove at least one of the essential elements of their case (see, Suydam v O'Neill, 276 AD2d 549). Farrell contends...
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