Dismissal of a Legal Malpractice claim was denied (and affirmed) in Eurotech Constr. Corp. v Fischetti & Pesce, LLP 2017 NY Slip Op 07780 Decided on November 9, 2017 Appellate Division, First Department. The claim arose over whether it was the attorney’s obligation to deal with client insurance for the underlying claim.
“The complaint alleges that defendant failed to ensure that plaintiff gave timely notice to its excess carrier that the primary insurer’s limits were likely to be exhausted in connection with the underlying personal injury claim. Conceding the general principle that a law firm may have an obligation to investigate insurance coverage (see Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 40-41 [2d Dept 2006]), defendant argues that it should not bear that burden in this case, because plaintiff had been advised by its insurer’s third-party administrator to notify its excess carrier of the claim and had not done so. However, as the motion court observed, the issue is not what plaintiff knew but whether its attorneys committed malpractice by not providing timely information obtained from the deposition testimony or bills of particular in the underlying action. Resolution of that issue depends on facts not yet developed (see id. at 41).”