Cohen v Sive, Paget & Riesel, P.C. 2017 NY Slip Op 32295(U) October 27, 2017 Supreme Court, New York County Docket Number: 154650/2013 Judge: Jennifer G. Schecter applies black-letter law to a shaken foundation legal malpractice case, leaving the legal malpractice claims standing, and the ancillary causes of action dismissed.
“In 2004, the Cohens’ neighbors–the Habers–did extensive excavation on their property as they planned to construct a house with two basement levels (Memorandum in Opposition [Opp] at 1). In August 2004, during the early stages of the excavation, the Cohens became concerned with vibrations and possible damage to their home and contacted the Habers’ contractor and the New York City Department of Buildings (DOB). ”
“On September 30, 2004, DOB inspectors determined that there was damage to the Cohens’ property that was caused by the Habers’ work (Opp, Exs 4-5) .
Days later, on October 4, 2004, plaintiffs retained SPR to represent them on issues related to the excavation, including the damage to their home (Supp at 9; Opp at 2) . Steven Barshov, a vice-president of SPR, was the Cohens contact at the firm (Supp at 5).
Over a year later, in December 2005, the Cohens made a claim with their insurance company. In a January 2006 letter, which was sent to plaintiffs and SPR, the Cohens’ insurer denied coverage because the Cohens were aware of damage to their home as early as September 21, 2004, yet failed to give “prompt notice” under the policy (Opp, Ex 8). ”
“To recover for legal malpractice, a plaintiff must demonstrate that the defendant 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 (Darby & Darby, P.C. v VSI Inern., Inc., 95 NY2d 308 ; Soni v Pryor, 139 AD3d 841, 842 [2d Dept 2016]; Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d 651, 651 [1st Dept 2012]; Sabalaza v Salgado, 85 AD3d 436, 437 [1st Dept 2011]). SPR has not met its heavy burden of establishing entitlement to summary judgment here. It failed to demonstrate that had plaintiffs submitted an insurance claim at the time SPR was retained, coverage would have definitively been denied (see Soni, 139 AD3d at 844 [affirming denial of summary judgment to attorneys who allegedly failed to advise their clients about the availability of insurance as they did not show that it would be “impossible” for plaintiffs to establish that had they given notice to their insurer, it would have complied with the policy’s condition precedent that notice be given “as soon as practicable”]) . 2 Significantly, in disclaiming coverage, the Cohens’ insurer explained that the Cohens were on notice of damage as of September 21, 2004, which is only two weeks before SPR was retained. Because SPR has not demonstrated that, as a matter of law, notice would have been untimely or that any potential negligence on its part could not have been the proximate cause of the plaintiffs’ loss of coverage, its motion for summary judgment is denied. “