The now bankrupt defendant in a personal injury case is suing her insurance carrier and her defense attorney after they failed to settle the case once summary judgment had been awarded to the injured party in Pergament v Government Empls. Ins. Co. (“GEICO”) 2024 NY Slip Op 01568 Decided on March 20, 2024 Appellate Division, Second Department. The motion was mostly denied.

“The defendant Government Employees Insurance Company (“GEICO”) (hereinafter Geico) retained the defendants Picciano & Scahill, LLP, and Gilbert J. Hardy (hereinafter together the law firm defendants) to represent Melissa Gace Bryant, who was a defendant in a personal injury action (hereinafter the underlying action). The plaintiff, the trustee of Bryant’s bankruptcy estate, subsequently commenced this action against Geico and the law firm defendants. As against Geico, the complaint alleged three causes of action: (1) bad faith refusal to settle the underlying personal injury action for the subject policy limit after a motion for summary judgment on the issue of liability was granted in favor of the underlying injured plaintiff, (2) breach of the covenant of good faith and fair dealing, and (3) punitive damages. As against the law firm defendants, the complaint alleged a cause of action for legal malpractice. Geico and the law firm defendants separately moved [*2]pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. The Supreme Court denied the motions. Geico and the law firm defendants separately appeal.”

“Here, with respect to the causes of action against Geico alleging bad faith refusal to settle the underlying personal injury action for the subject policy limit and breach of the covenant of good faith and fair dealing, the medical reports submitted by Geico in support of its motion do not constitute “documentary evidence within the intendment of CPLR 3211(a)(1)” (Jeffrey v Collins, 218 AD3d 451, 453), and Geico’s evidentiary submissions were “insufficient to utterly refute the plaintiff’s factual allegations” (Davis v Henry, 212 AD3d 597, 598). Further, after considering the evidentiary proof submitted by Geico, the Supreme Court properly determined that the plaintiff had causes of action against Geico alleging bad faith refusal to settle the underlying personal injury action for the subject policy limit and breach of the covenant of good faith and fair dealing (see East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 199 AD3d 881, 884; CBLPath, Inc. v Lexington Ins. Co., 73 AD3d 829, 830-832; Brennan v Mead, 73 AD2d 926, 927; cf. Little Princess Express Cab Corp. v American Tr. Ins. Co., 12 AD3d 266, 267). Accordingly, the court properly denied those branches of Geico’s motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the causes of action alleging bad faith refusal to settle the underlying personal injury action for the subject policy limit and breach of the covenant of good faith and fair dealing.

The Supreme Court should have granted that branch of Geico’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action for punitive damages against it because “no separate cause of action for punitive damages lies for pleading purposes” (Crown Fire Supply Co., Inc. v Cronin, 306 AD2d 430, 431; see Podesta v Assumable Homes Dev. II Corp., 137 AD3d 767, 770). However, the complaint, “although inartfully drafted,” (Leon v Martinez, 84 NY2d at 88), adequately alleges a demand for punitive damages based on the remaining causes of action asserted against Geico (see Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613; Perlbinder v Vigilant Ins. Co., 190 AD3d 985, 989; 25 Bay Terrace Assoc., L.P. v Public Serv. Mut. Ins. Co., 144 AD3d 665, 666-668; 2015 Freeman LLC v Seneca Specialty Ins. Co., 136 AD3d 531, 532).

Accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87-88), the complaint sufficiently stated a cause of action alleging legal malpractice against the law firm defendants (see Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34; Young v Nationwide Mut. Ins. Co., 21 AD3d 1099). Accordingly, the Supreme Court properly denied that branch of the law firm defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice against them.”