VPC Projects, LLC v Golenbock Eiseman Assor Bell & Peskoe LLP 2020 NY Slip Op 32069(U) June 2, 2020 Supreme Court, New York County Docket Number: 156097/2016 Judge: Margaret A. Chan was decided on the question of whether investigating insurance coverage for a nuisance complaint was part of the attorney-retention or merely a ministerial act, for which no legal malpractice could occur. In the end, judge Chan decided that the attorneys helped out, but did not incur an obligation to handle an insurance claim.
“Soon after opening Veronica Peoples Club (“the bar”) in 2010, plaintiff was met with multiple noise complaints from its neighbors, Peter and Lena Jou. Consequently, plaintiff received citations and was subject to hearings and fines from the New York City’s Department of Environmental Protection (DEP). Peter and Lena Jou ultimately commenced a nuisance action against plaintiff and its landlord on January 2, 2012 (the Jou Action). ”
“Immediately after the commencement of the Jou Action, Robert Millstone sent defendant copies of the pleadings in the Jou Action. On January 4, 2012, an attorney in defendant’s firm, Elizabeth Jaffe, emailed Heather Millstone asking whether plaintiff had insurance coverage. Heather Millstone responded on January 5 and furnished Jaffe with plaintiff’s insurance broker’s name, Jennifer Shoemaker, and her contact information. On January 6, Jaffe emailed Shoemaker at her office, W.B. Payne Co. (the third-party defendant), and requested that Shoemaker send the Jou Action complaint to plaintiff’s insurance carrier in order to serve as plaintiff’s notice of claim. Jaffe also requested that Shoemaker keep Jaffe apprised
of the status of the insurer’s review of the claim; Shoemaker agreed to do so.
In response to the email exchange between Jaffe and Shoemaker, Heather Millstone emailed Jaffe asking whether plaintiff was covered by the insurance carrier, to which Jaffe responded “no, not at all. Probably not, but we will give it a shot just in case” (NYSCEF # 118, Email dated January 6, 2012). On January 10, 2012, Shoemaker faxed a notice of claim and the complaint in the Jou Action to plaintiff’s insurer’s representative, RCN. Shoemaker also confirmed to Jaffe that she sent the notice of claim to plaintiff’s insurer and that she
would advise Jaffe of coverage “as soon as I receive the claim notification with the claim number[,] I will forward over to you for your records” (NYSCEF # 149, Email dated January 10, 2012). ”
“Defendant denies being retained to make an insurance coverage determination for the underlying Jou Action. Defendant characterizes Jaffe’s equest for the insurance policy and forwarding it to plaintiff’s insurance broker as ministerial acts – not an undertaking of the insurance coverage issue. Defendant contends that even if an obligation did exist, defendant fulfilled it by tendering the Jou Action complaint to plaintiff’s insurance agent. ”
“As such, defendant has made its prima facie showing that its scope of representation in the Jou Action did not include rendering an insurance coverage determination, including a follow-up on plaintiff’s insurance claim. Plaintiff has not raised an issue of fact to defeat defendant’s prima facie case. In so determining that plaintiff’s insurance coverage issue was not within defendant’s scope of representation, defendant is not liable for failing to act outside the scope of its retention (AmBase Corp., 8 NY3d at 435). Hence, defendant’s
remaining contentions are academic and will not be addressed.
Plaintiff’s claim that defendant’s alleged erroneous advice was the proximate cause of its damages is likewise academic. Nonetheless, plaintiff fails to show that it would not have incurred any damages but for defendant’s alleged negligence (see Rudolf v Shayne, Dachs, Corker & Sauer, 8 NY3d 438, 442  [internal quotations and citations omitted]). The Millstones’ respective emails in February and March 2012 show that the prominent reason plaintiff lost its investment or “throwing in the towel” was because the bar was not profitable to warrant dealing with the incessant noise complaints and fines (NYSCEF ## 127, 129, 139).”