Plaintiffs rarely obtain partial summary judgment other than in strict liability or labor law cases. They almost never win in a legal malpractice setting, and Eurotech Constr. Corp. v Fischetti & Pesce, LLP 2019 NY Slip Op 01366 Decided on February 26, 2019 Appellate Division, First Department is no exception. The Court was unable to determine, as a matter of law whether there was an obligation to advise the clients to trigger their excess insurance, and asked for expert guidance.
“Plaintiff failed to establish that there are no issues of fact as to its legal malpractice claim. The claim is that defendant failed to timely communicate with plaintiff about information obtained from testimony or bills of particular in the underlying personal injury action, and that, as a result, plaintiff was unable to timely notify its excess insurance provider that its primary insurance coverage might be exhausted. Still unresolved are the type and timing of any communication required, which depends on the agreed-upon scope of defendant’s representation of plaintiff, and the point at which defendant, in the exercise of the requisite professional skill and knowledge, should have realized that plaintiff’s primary insurance coverage could be exhausted (see Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 41-42 [2d Dept 2006], cited in Eurotech Constr. Corp., 155 AD3d at 437). Expert testimony would have been helpful because the issues here involve professional standards beyond the ordinary experience of non-lawyers (see Tran Han Ho v Brackley, 69 AD3d 533, 534 [1st Dept 2010], lv denied 15 NY3d 707 ).”