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April 4, 2005.


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 defense.

  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 ...

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