Whether other issues will work in the attorney’s favor is a question for summary judgment. In Golden Ins. Co. v Vogrin & Frimet, LLP 2025 NY Slip Op 31103(U) April 4, 2025 Supreme Court, New York County Docket Number: Index No. 162162/2023 Judge: Mary V. Rosado, the court held that failing to raise a controlling precedent is a problem.

“Plaintiff issued a commercial general liability insurance policy (the “Policy”) to non-party Ingrid Home LLC (“Ingrid”). Plaintiff alleges that pursuant to the terms of the Policy, damages for bodily injury were only covered if incurred at a construction project at 356 E. 8th Street, New York, NY 10009 (the “Premises”). On January 14, 2016, Ingrid was notified of an accident on the Premises involving a worker, Luis Alberto Pomboza, (“Pomboza”). On January 20, 2016, Ingrid’s counsel forwarded that letter to Plaintiff and Plaintiff’s claim administrator. On March 4, 2016, Plaintiff’s counsel, denied coverage. On December 21, 2017, Pomboza’s estate commenced a lawsuit against Ingrid and others (the “Underlying Lawsuit”). In January 2018, Ingrid notified Plaintiff of the Complaint, and Plaintiff issued a reservation of rights letter acknowledging its obligation to defend Ingrid subject to the right to disclaim coverage. Subsequently, Plaintiff retained Defendants to prosecute declaratory judgment action seeking a declaration no coverage was owed to Ingrid in the Underlying Lawsuit. The declaratory judgment action was filed on February 10, 2020 (the “Declaratory Judgment Action”). Ingrid asserted as an affirmative defense that Plaintiff failed to comply with § 3420( d)(2). In the Declaratory Judgment Action, Defendants moved for summary judgment on behalf of Plaintiff while Ingrid also moved for summary judgment. Defendants failed to raise precedent holding that risk retention groups are not bound by the requirements of § 3420( d)(2). The complaint was dismissed based on Plaintiff’s alleged failure to comply with § 3420(d)(2). A motion to reconsider was denied because Defendants raised Court of Appeals precedent for the first time on reargument. The Second Circuit affirmed the lower court’s decision. Because the Declaratory Judgment Action failed, Plaintiff settled the Underlying Action for $900,000. Plaintiff now sues Defendants alleging legal malpractice and negligence. In this motion, Vogrin & Frimet moves to dismiss Plaintiff’s Complaint pursuant to CPLR 321 l(a)(l) and (a)(7).”

“Vogrin & Frimet’s motion to dismiss Plaintiff’s legal malpractice claim is denied. The crux of Vogrin & Frimet’ s motion is that Plaintiff fails to allege adequately that Defendants’ failure to raise the operative Court of Appeals case, Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 NY3d 1 (2019), proximately caused the damages. They argue even had Defendants raised Nadkos, Defendants may still have lost based on Ingrid’s other defenses, including waiver and estoppel. However, this argument is contrary to the Southern District of New York’s decision on the motion for summary judgment (NYSCEF Doc. 64). The decisions by the Southern District of New York and the Second Circuit framed the dispositive issue as one of compliance with Insurance Law § 3420( d)(2). Judge Lewis Liman explicitly stated that Plaintiff “failed to provide a timely disclaimer under the New York Insurance Law, and thus may not now issue a disclaimer. This is not a matter of waiver.” On appeal, the Second Circuit’s decision focused solely on timely disclaimer under Insurance Law§ 3420(d)(2) and made no mention of the common law doctrines of waiver and estoppel (see Golden Ins. Co. v Ingrid House LLC, 2022 WL 2165252 at *2-3 [2d Cir. 2022]). Moreover, the Second Circuit explicitly declined to address the application of Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 NY3d 1 (2019) because it was raised for the first time on a motion to reconsider (Golden, supra at *4). For purposes of a pre-answer motion to dismiss, the pleadings and supporting documents show that Plaintiff’s allegations adequately allege proximate cause and do not fall into the realm of mere speculation. While Defendants are welcome to defend proximate cause pursuant to the “case within a case” doctrine (see, e.g. Carasco v Schlesinger, 222 AD3d 476, 477 [1st Dept 2023 ]), which may ultimately be successful on a subsequent motion for summary judgment, at this juncture, Defendants’ arguments are insufficient to win a pre-answer motion to dismiss.”