The opinion of the court was delivered by: ROBERT CARTER, Senior District Judge
In the current matter before the court, plaintiff, Harleysville
Worcester Insurance Company, alleges that defendants, Adam M.
Hurwitz in his individual capacity and his firm Silverstein &
Hurwitz, P.C., committed legal malpractice in the representation
of plaintiff's insured, Intedge Industries, Inc., and asks the
court to enter partial summary judgment as to defendants'
liability. Defendants counter by cross-moving for summary
judgment and, additionally, dismissal of plaintiff's subrogation
claim as duplicative of its legal malpractice claim. Defendants
also seek leave pursuant to Rule 14(a), F.R.Civ.P., to serve a
summons and third-party complaint on proposed third-party
defendants, Joseph Redd in his individual capacity and his firm
O'Connor, Redd, Gollihue & Sklarin, LLP.
This legal malpractice action stems from defendants'
representation of plaintiff's insured. Intedge Industries, Inc.
("Intedge"), in a product liability action brought in 1999 by
Lidia Sokal in the United States District Court for the Eastern
District of New York. In connection with this underlying action,
(hereinafter "Sokal Action"), Sokal sought money damages for
injuries she sustained when her right hand and arm were pulled
into the chopping head attachment to a meat grinding machine.
Sokal alleged causes of action against Hobart Manufacturing
Company, the alleged manufacturer of the mixer, and Intedge, the
alleged manufacturer of the component chopping head attachment,
for negligence, strict products liability and breach of warranty.
Pursuant to a policy of insurance issued to Intedge, Harleysville
Worcester Insurance Company the current plaintiff retained
defendants, Adam M. Hurwitz and his law firm Silverstein &
Hurwitz, P.C. (collectively "S&H"), to serve as Intedge's defense
counsel in the Sokal action.
Defendants' actions as counsel for plaintiff's insured,
Intedge, are the focus of the current litigation. On April 18,
2000, counsel for Sokal served defendants with a notice to admit
in the underlying action which required defendants, among other
things, to admit or deny whether Intedge manufactured the subject
chopping head attachment. Defendants, however, failed to serve a
response to Sokal's notice to admit within the allotted time
period. As a result of defendants' failure to timely respond, the
trial court sanctioned Intedge by entering an order barring it
from introducing any evidence, in the trial of the action,
regarding any other specific manufacturers of the subject
chopping head attachment, though Intedge could still deny its own
involvement as the manufacturer. Though the foregoing is
undisputed and defendants recognize that S&H's failure to
respond was a departure from the applicable standard of care
plaintiff and defendants disagree as to what repercussions, if
any, this order of preclusion had on plaintiff's insured's
In addition to defendants' failure to respond to the notice to
admit, plaintiff alleges that S&H committed a number of other
negligent acts in their representation of Intedge, all of which
defendants dispute. The most contentious of these is defendants'
decision to agree to the entry of a summary judgment motion in
favor of Intedge's co-defendant, Hobart, the alleged manufacturer
of the mixer.*fn1 Plaintiff claims that by releasing Hobart
from the action, Intedge's ability to shift responsibility to a
co-defendant was precluded and that, at the very least,
defendants should have consulted with Intedge before agreeing to
Hobart's dismissal. Furthermore, plaintiff alleges that
defendants' failure to object to the entry of summary judgment
resulted from counsel's failure to conduct adequate research and
discovery, all of which left defendants, according to plaintiff,
unprepared to contest the motion. Defendants' for their part,
defend the decision as a proper exercise of their discretion as
counsel in shaping a litigation strategy and note that counsel
for Sokal also did not oppose the entry of summary judgment.
In addition, plaintiff offers as further evidence of
defendants' negligence, counsel's failure to: designate an expert
or rebuttal expert witness in support of plaintiff's insured's
defenses; serve written discovery requests on co-defendant Hobart
and make initial disclosures pursuant to Rule 26(a), F.R.Civ.P;
and, communicate with plaintiff and Intedge regarding allegedly
crucial aspects of the litigation. As previously stated,
defendants deny any negligence regarding these decisions and
offer exculpatory evidence for their (in) actions, including that
they attempted to find an expert but were unsuccessful in doing
so and that the discovery requests served by co-defendant Hobart
upon Sokal were sufficient.
As a result of plaintiff's dissatisfaction with defendants'
performance, S&H was dismissed as counsel in September 2001,
whereupon plaintiff retained Joseph Redd and his firm O'Connor &
O'Connor, LLP (now O'Connor, Redd, Gollihue & Sklarin, LLP) as
new counsel. Citing the adverse impact of defendants' errors and
omissions upon Intedge's available defenses, Intedge's new
counsel suggested that plaintiff settle the Sokal matter. In June
2002, plaintiff settled with Sokal, on behalf of Intedge, for a
lump sum payment of $900,000.
Plaintiff claims that as a result of defendants' negligence,
Intedge's defenses in the Sokal action were severely compromised
and that plaintiff, as Intedge's insurer, was forced to pay Sokal
an amount substantially higher than it would have otherwise paid
had defendants properly discharged their duties. In order to
recoup the losses allegedly caused by defendants' negligence,
plaintiff filed the legal malpractice and subrogation claims
currently before the court.
This court has jurisdiction over the subject matter of this
action pursuant to 28 U.S.C. § 1332 because plaintiff,
Harleysville Worcester Insurance Company, is a citizen of
Massachusetts and defendants, S&H, are citizens of New York, and
the amount in controversy exceeds the sum of $75,000, exclusive
of costs and interests. Venue is proper in the Southern District
of New York pursuant to 28 U.S.C. § 1391.
Summary Judgment Motions Standard for Summary Judgment
A moving party is entitled to summary judgment if the court
determines that there exists no genuine issue of material fact to
be tried and the party is entitled to judgment as a matter of
law. See Rule 56, F.R.Civ.P; see also Holt v. KMI-Continental,
Inc., 95 F.3d 123, 128 (2d Cir. 1996); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). The moving party bears the burden of showing that no
genuine issue of ...