QBE Ins. Corp. v Lebowitz  2013 NY Slip Op 31752(U)  July 11, 2013  Supreme Court, New York County   Docket Number: 600412/10 Judge: Milton A. Tingling leads one to the question, How could this happen?  Law firm defends insurance company, and routine discovery demands are served.  Routine discovery demands are ignored.  Not until after the date for responses does the law firm even ask its client for the materials.  Numerous adjourned dates go by and the material is not provided.  Summary judgment ensues.  Appeal is taken. Appeal is lost. 

Insurance company sues its attorney, and the attorney brings in the claims service which was taking care of the insurance company’s files and documents.  Claims service company tries to get out of the case.  Here, from the decision:

"All of the files handled by CSB for QBE were transferred to Rockville Risk Management Associates in early November 2006. These included the files for the AWL Industries action. Another status Conference in the AWL Industries action was held on November 8, 2006 and the court extended QBE’s time to comply with the court’s October 16,2006 order to December 8, 2006 (id. at 18-1 9). On December 19,2006 another compliance conference was held where the court entered a status order stating that the note of issue was ready to be filed. Plaintiffs in the A WL Industries action filed note of issue on or about December 2 1, 2006. On February 20, 2007, the plaintiffs in the underlying AWL Industries action filed a motion for summary  judgment and to strike QBE’s answer for failure to provide discovery (id. at 77 20-21). On February 2 1, 2007, Rockville informed Maloof Lebowitz that Newman Myers would substitute in as counsel for QBE. Ultimately, Judge Tingling issued and order on October 17,2007 that granted summary judgment to AWL Industries (id. at 77 21-22). On March 24, 2008, on behalf of QBE, Newman Myers served a motion for leave to renew the motion or summary judgment. On December 22,2008, the court issued an order denying the motion to renew. An appeal of these orders was taken and an appellate brief was filed on February 5,2009. On September 15, 2009, the Appellate Division, First Department affirmed the trial court’s orders granting summary judgment (id. at 18 23-25). QBE claims that as a result of the First Department’s decision it was forced to settle the coverage action an tender the full amount of the policy, $1 million, as well as AWL Plaintiffs legal fees and costs. In addition, QBE alleges that Maloof Lebowitz engaged in legal malpractice in its representation of QBE in the AWL Industries action because their answer was stricken as a result of Maloof Lebowitz’s repeated failure to timely comply with discovery 

Once the movant has established a prima facie case that it is entitled to summary judgment, the burden then shifts to the party opposing the motion to tender sufficient evidence in admissible form to defeat the motion Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). The third party plaintiffs opposition raises triable issues of fact in dispute concerning what caused the legal malpractice in the underlying action. Here, Maloof Lebowitz claims that CSB failed to provide them with a written statement from an employee, Frank Allecia in the underlying AWL Industries action, which they received in March of 2006. Maloof Lebowitz relied on CSB to relay its claims administrations and investigation to them on numerous occasions to no avail. In addition, CSB failed to provide Maloof with discovery assistance before the final discovery deadline became effective and before they were relieved of their third party administrator duties. Accordingly summary judgment does not lie. Therefore the third party defendant’s motion for summary judgment is denied."