Fireman's Fund Insurance Company v. Farrell

• Decision Date: 16 December 2008
• Docket Number: 2007-09129.
• Parties: FIREMAN'S FUND INSURANCE COMPANY et al., Respondents, v. JAMES P. FARRELL, JR., Appellant.
• Court: New York Supreme Court — Appellate Division

57 A.D.3d 721

869 N.Y.S.2d 597

2008 NY Slip Op 09951

FIREMAN'S FUND INSURANCE COMPANY et al., Respondents, v. JAMES P. FARRELL, JR., Appellant.

2007-09129.

Appellate Division of the Supreme Court of New York, Second Department.

December 16, 2008.

In an action, inter alia, to recover damages for legal malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, J.), dated August 13, 2007, as denied his motion for summary judgment dismissing the complaint and granted those branches of the plaintiffs' cross motion which were pursuant to CPLR 3211 (b) to dismiss his affirmative defenses.

Ordered that the order is modified, on the law, by deleting the provision thereof granting those branches of the plaintiffs' cross motion which were to dismiss the second, seventh, and twelfth affirmative defenses and substituting therefor a provision denying those branches of the plaintiffs' cross motion; 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 in damages for the injuries he sustained when he fell from a roof on Gazza's building (hereinafter the Quiles action). In September 1996 Gazza commenced a third-party action against Quiles' employer, the Six G'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, the State Insurance Fund (hereinafter SIF), about the pending lawsuits until February 12, 1999, almost 2½ years after the Indemnity action began and almost 1 year after the Supreme Court awarded partial summary judgment in favor of Quiles on the issue of liability and in favor of Gazza on the issue of indemnification. Although SIF disclaimed coverage based on 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), contributed the remaining $700,000.

Six G's subsequently assigned its claims against Farrell, inter alia, alleging legal malpractice to Gazza and Fireman's, who commenced the present action. On a prior appeal, this Court affirmed the denial of Farrell's motion to dismiss the complaint for failure to state a cause of action and the denial of the plaintiffs' cross motion for summary judgment (see Fireman's Fund Ins. Co. v Farrell, 289 AD2d 286 [2001]).

In an action to recover damages for legal malpractice, a plaintiff must prove that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" and that the attorney's breach of this duty proximately caused actual and ascertainable damages (McCoy v Feinman, 99 NY2d 295, 301 [2002] [internal quotation marks and citation omitted]). To establish the element of causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney's negligence (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 legal malpractice, 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 (see Suydam v O'Neill, 276 AD2d 549 [2000]; Ostriker v Taylor, Atkins & Ostrow, 258 AD2d 572 [1999]).

Farrell contends that he is entitled to summary judgment because the plaintiffs, the assignees of his former...