Risk Control Assoc., Inc. v Maloof, Lebowitz, Connahan & Oleske, P.C. 2017 NY Slip Op 01654 Decided on March 7, 2017 Appellate Division, First Department was dismissed and affirmed for the reason that “The factual allegations and the damages sought in the instant action are the same as the factual allegations underlying the legal malpractice claims and the damages sought in an earlier action brought against defendants by plaintiff Risk Control Associates, Inc., the claims administrator for plaintiff National Specialty Insurance Company (Risk Control Assoc. Ins. Group v Maloof, Lebowitz, Connahan & Oleske, P.C., 127 AD3d 500 [1st Dept 2015]) (see Voutsas v Hochberg, 103 AD3d 445, 446 [1st Dept 2013], lv denied 22 NY3d 853 ). The instant claims are also time-barred (see CPLR 214).”
The first case was dismissed “or its failure to allege that it had a “contractual obligation to pay for the loss in the personal injury action,” and to “allege that it sustained actual damages because of this obligation” (Risk Control Assoc. Ins. Group v Maloof, Lebowitz, Connahan & Oleske, P.C., 113 AD3d 522, 522 [1st Dept 2014] [Risk Control I]).”
“Here, no damages can be “reasonably inferred,” as plaintiff’s amended allegations are defeated by the documentary evidence it submitted. The affidavit submitted by the vice-president of one of the proposed plaintiffs averred that plaintiffs were all claims administrators. Furthermore, the vice-president attested that the loss, allegedly resulting from defendants’ malpractice, was paid by an entity who was not a party plaintiff, or proposed party plaintiff. Thus, plaintiff failed to allege either a “contractual obligation to pay for the loss,” or actual damages (Risk Control I at 522;Tenzer, Greenblatt at 45).
Moreover, plaintiff’s conclusory allegations of representation will not suffice in the absence of an attorney-client relationship with defendants (see Denenberg v Rosen, 71 AD3d 187, 196 [1st Dept 2010], lv dismissed 14 NY3d 910 ).
To the extent the motion sought to add the primary insurer as a plaintiff, defendants would be unduly prejudiced by the introduction of that new party plaintiff after the statute of limitations has expired (see Bellini v Gersalle Realty Corp., 120 AD2d 345 [1st Dept 1986]). ”