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Property & Casualty Ins. Co. of Hartford v. Levitsky

Supreme Court, New York County

January 25, 2013

Property & Casualty Insurance Company Of Hartford, Plaintiff
Steven Levitsky and HANDELMAN WITKOWICZ & LEVITSKY, Defendants.

Unpublished Opinion

Lucy Billings, J.

Plaintiff, having issued a professional liability insurance policy to defendants, an attorney and his law firm, seeks a judgment declaring that, due to defendants' late notice of an occurrence likely to lead to a claim, plaintiff owes no duty to defend or indemnify defendants in an underlying action for legal malpractice arising from that occurrence. C.P.L.R. § 3001. Defendants counterclaim for a judgment declaring that plaintiff is obligated to defend and indemnify them and for attorneys' fees and expenses. Id. Plaintiff moves for summary judgment awarding a declaratory judgment on plaintiff's first claim and dismissing defendants' counterclaims. C.P.L.R. §§ 3001, 3212(b) and (e). Defendants cross-move for summary judgment on their counterclaims. C.P.L.R. § 3212(b). Defendants separately move to change the venue of this action to Monroe County for the convenience of material witnesses. C.P.L.R. §§ 510(3), 511.The parties stipulate that the court may consider all exhibits supporting and opposing summary judgment as authenticated and admissible for purposes of summary judgment and that the motion and cross-motion for summary judgment raise no factual issues, but only issues as to the insurance policy's construction. Finally, defendants stipulate that, if the court grants either the motion or the cross-motion for summary judgment, defendants' motion to change venue will be moot. After oral argument, for the reasons explained below, the court grants plaintiff's motion for summary judgment, denies defendants' cross-motion for summary judgment, C.P.L.R. § 3212(b) and (e), and denies as moot defendants' motion to change venue. C.P.L.R. §§ 510(3), 511.


Defendants represented Paul Rowland as a plaintiff in an action in Monroe County for personal injuries sustained on October 24, 2003, while Rowland was performing construction work at a mall. On August 29, 2006, less than two months before the statute of limitations of three years expired, C.P.L.R. § 214(5), defendants commenced an action on Rowland's behalf against Wilmorite, Inc. Defendant Levitsky believed that Wilmorite owned the Eastview Mall where Rowland was injured, based on a sign at the premises and on "common knowledge that Wilmorite owns all the large malls in the Rochester area, including Eastview." Aff. of Steven Levitsky (Nov. 30, 2011) Ex. 8, at 1. On October 19, 2006, five days before the statute of limitations expired, Wilmorite answered Rowland's complaint, denying ownership of the mall where Rowland was injured. Almost 14 months later, at a deposition December 12, 2007, a witness on behalf of Wilmorite again denied that it owned the mall and claimed Great Eastern Mall, LP, was the owner.

That same witness, however, testified that Great Eastern Mall and Wilmorite worked closely together and shared an office address. Wilmorite was the construction manager on the site when Rowland was injured under a contract with Great Eastern Mall. Only then did defendants undertake any investigation and eventually learn that that contract required Great Eastern Mall to maintain insurance for Wilmorite covering personal injuries arising from employees' operations at the site. Based on that relationship between Great Eastern and Wilmorite, defendants believed Rowland still would be entitled to recover from Wilmorite, e.g., NY Labor Law §§ 200, 240(1); Walls v. Turner Constr. Co., 4 N.Y.3d 861, 864 (2005); Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 352-53 (1998), or, despite the expiration of the statute of limitations, to join Great Eastern Mall under the relation back doctrine. C.P.L.R. § 203(b). E.g., Buran v. Coupal, 87 N.Y.2d 173, 178 (1995); Cooley v. Urban, 6 A.D.3d 1077, 1078 (4th Dep't 2004).

On February 5, 2008, Wilmorite moved to dismiss Rowland's claims against it. On May 28, 2008, on Rowland's behalf, defendants opposed Wilmorite's motion and cross-moved to join Great Eastern Mall as a defendant. On July 30, 2008, the Supreme Court, Monroe County, granted Wilmorite's motion and denied Rowland's cross-motion. Defendants immediately advised Rowland to retain a new attorney. On August 19, 2008, Rowland's new attorney informed defendants that he had been retained for purposes of a possible malpractice claim against defendants. On May 4, 2009, Rowland commenced, through his new attorney, a malpractice action against defendants.

The professional liability insurance policy issued by plaintiff to defendants for the period covering their representation of Rowland contains the following notice provisions:

1.Reporting of circumstances which may give rise to a claim

If, during a policy period or applicable extended reporting period, an insured first becomes aware of a circumstance that may give rise to a claim, the insured must give written notice.... Claims subsequently made against an insured arising out of that circumstance will be considered to have been made and reported during the policy period....

2. Insured's duties in the event of a claim or circumstances which may give rise to a claim
a. You and any other involved insured must see to it that we are notified immediately, but in no event later than sixty (60) calendar days after the insured becomes aware of any circumstance which may give rise to a claim....
b. If a claim is received by an insured you must:
i. Immediately record the specifics of the claim and the ...

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