Legal Malpractice

Legal Malpractice is Different, After All

By (Andrew Lavoott Bluestone)

In this particular case, it is possible to read through the entire Appellate decision and not even know what was alleged against the attorneys.  Rather, on summary judgment, the court determines that plaintiff could not have won against the insurer, hence, legal malpractice case is dismissed.  Unlike other types of cases, the fight is usually on the "case within a case" or on a more basic issue such as statute of limitations.  In this case, Schorsch v. Moses Singer, 2009 NY Slip Op 02293 ,Decided on March 26, 2009 , Appellate Division, First Department  we see:
 

"The court properly found that Margaret Schorsch's affidavit failed to create an issue of material fact as to whether her brother David was responsible for the 1995 inventory loss, or whether he was an "authorized representative" of M.R.S. Antiques so as to defeat coverage under the "dishonest acts" exclusion in the policy. Her affidavit contradicts detailed statements she previously made under oath in a 1995 case she brought against David wherein she alleged that he, as an integral member of the family business, had stolen company inventory and was thus responsible for the loss. This contradiction negated the authority of her affidavit as a basis for defeating defendant's motion for summary judgment (see Sugarman v Malone, 48 AD3d 281 [2008]).

Plaintiffs' assertion that the insurance policy did not contain an exclusion for dishonest acts is contrary to the record evidence. It is true that the insurer's counsel, in the February 14, 1997 letter denying coverage, mistakenly cited to a different policy it had issued to M.R.S. Antiques. However, the slight differences between the language of the Fine Arts Coverage dishonest acts exclusion and the one incorrectly cited by counsel in the letter do not affect the [*2]material terms of the applicable exclusion. The basic scope is the same: coverage is excluded for dishonest acts by "you" or the insured's "employees" or "authorized representatives" or "anyone entrusted with the property." Since the inventory loss was caused by the dishonest acts of David, who qualified as an authorized representative of M.R.S. Antiques or a person otherwise entrusted with the missing property, coverage was properly denied. "

Full post as published by New York Attorney Malpractice Blog on March 30, 2009 (boomark / email).