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March 26, 2002


The opinion of the court was delivered by: McMAHON, District Judge.


In this insurance coverage action, plaintiff, an attorney confronted with the spectre of malpractice liability, seeks a declaration that Defendant, Chicago Insurance Company (CIC), is obligated to defend and indemnify him under the terms of his malpractice policy. He moves for summary judgment. CIC opposes that motion and cross-moves for summary judgment on the ground that plaintiff failed to provide CIC with timely notice of a potential claim as required by the terms of the lawyer's professional liability insurance policy at issue.

Plaintiff's motion is denied and Defendant's cross motion is granted.

The undisputed facts show that plaintiff learned of circumstances which reasonably could be expected to be the basis of a claim against him early in 1999, but did not report the potential claim to CIC until October 31, 2000, a year and a half later. Such a delay is unreasonable as a matter of law. Moreover, plaintiff has set forth no legally cognizable excuse for his inordinate delay. Moreover, contrary to plaintiffs assertions, CIC's disclaimer was not untimely. Accordingly, plaintiff is not entitled to coverage from CIC for Miller's claim.

Statement of Facts

The undisputed facts are as follows:

Michael Sirignano is an attorney admitted to practice in the State of New York. He was engaged to represent Raymond Miller in a medical malpractice action against Dr. Jack Fein. The action was commenced in the Supreme Court, Dutchess County, in 1990. Note of Issue and the Certificate of Readiness were filed in August 1995. The matter was scheduled for trial on September 15, 1997. On that date, both parties appeared with counsel and answered Ready at the call of the calendar. However, the presiding judge marked the case off calendar because of plaintiffs failure to provide his opponent with expert reports prior to trial (the judge was asked to preclude experts from testifying on behalf of plaintiffs client; in the circumstances, the court cut Sirignano a break). Nothing happened, and fifteen months later, Dr. Fein's counsel moved for an order pursuant to CPLR 3404 dismissing the case as abandoned. On January 14, 1999, without further action by the court, the Clerk of the Court entered judgment dismissing the complaint.

Sirignano then moved to vacate the judgment, but Justice Pagones denied relief on April 29, 1999. He took an appeal on behalf of his client, but the Appellate Division, Second Department affirmed the dismissal of the malpractice action on January 3, 2000. In the autumn of 2000, a motion for leave to appeal to the New York Court of Appeals was denied by that Court.

Shortly thereafter, on October 31, 2000, Sirignano notified CIC, his malpractice carrier, that there was a chance that Mr. Miller may assert a claim against him although he has not given me any such indication. (Cavaliere Aff. Ex. B) The insurer requested the file on the underlying action by letter dated February 9, 2001. Six days later, on February 15, 2001, attorneys representing Miller contacted Sirignano concerning his legal malpractice claim. Plaintiff forwarded the file in Miller v. Fein to CIC on February 23, 2001. By letter dated March 30, 2001, CIC denied coverage, attributing its denial to Sirignano's failure to give the insurer timely notice of the potential claim.

Sirignano commenced an action for declaratory judgment of coverage in Supreme Court, Westchester County, on June 25, 2001. The action was timely removed to this Court.

Conclusions of Law

Under Rule 56(c) of the Federal Rules of Civil Procedure, the Court will grant summary judgment if the evidence offered shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court views the record in the light most favorable to the non-movant and resolves all ambiguities and draws all reasonable inferences against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Donahue v. Windsor Locks Bd. of Fire Commn'rs, 834 F.2d 54, 57 (2d Cir. 1987). Here, summary judgment in CIC's favor is warranted, as the undisputed facts demonstrate it has no duty to indemnify or defend on the facts presented.

Plaintiff Failed to Comply with the Policy Condition Requiring Timely Notice of a Potential Claim

In section IX of the policy at issue, entitled "Conditions," it is stated in relevant part as follows:

"B. Assistance and Cooperation of Insured in the Event of Claim or Suit: Upon the Insured becoming aware of any negligent act, error, omission or Personal Injury in the rendering of or failure to render Professional Services which could reasonably be expected to be the basis of a Claim covered hereby, written notice shall be given by the Insured, or its representative to the Company together with the fullest information obtainable as soon as practicable. If Claim is made or suit is brought against the Insured, the Insured or its representative shall ...

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