Summary
affirming an order awarding plaintiff defense costs against defendants because plaintiff reserved its right to seek reimbursement for such costs in event of finding of no coverage
Summary of this case from Am. W. Home Ins. Co. v. Gjonaj Realty & Mgmt.Opinion
2013-12-5
CERTAIN UNDERWRITERS AT LLOYD'S LONDON SUBSCRIBING TO POLICY NUMBER SYN–1000263, Plaintiff–Respondent, v. LACHER & LOVELL–TAYLOR, P.C., et al., Defendants–Appellants.
Eaton & Van Winkle, New York (Adam J. Rader of counsel), for appellants. Harris Beach PLLC, New York (Antoinette Lyndon Banks of counsel), for respondent.
Eaton & Van Winkle, New York (Adam J. Rader of counsel), for appellants. Harris Beach PLLC, New York (Antoinette Lyndon Banks of counsel), for respondent.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered March 26, 2012, which granted plaintiff's motion for summary judgment declaring that it was not obligated to defend or indemnify defendants in the underlying estate proceeding, and on its cause of action for reimbursement of its defense costs, and order, same court and Justice, entered October 9, 2012, which, to the extent appealable, granted plaintiff's motion to modify the order to include summary judgment on its supplemental complaint, and order and judgment (one paper), same court and Justice, entered March 13, 2013, awarding plaintiff the total sum of $166,968.90 in defense costs from defendants, unanimously affirmed, with costs.
A claim for the return of legal fees is not a claim for “damages” in a legal malpractice action, as defined in the professional liability policy issued by plaintiff to defendants ( see Shapiro v. OneBeacon Ins. Co., 34 A.D.3d 259, 260, 824 N.Y.S.2d 46 [1st Dept.2006], lv. denied9 N.Y.3d 803, 840 N.Y.S.2d 764, 872 N.E.2d 877 [2007] ). In support of each of the causes of action, the complaint alleges only that defendants overbilled their client in the underlying estate proceeding; it does not allege facts tending to show that but for their negligence, they could have achieved a better result for him ( see Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 162–163, 581 N.Y.S.2d 142, 589 N.E.2d 365 [1992]; Barbara King Family Trust v. Voluto Ventures LLC, 46 A.D.3d 423, 849 N.Y.S.2d 41 [1st Dept.2007] ). Moreover, plaintiff reserved its right to seek reimbursement of its defense costs in the event of a finding of no coverage ( see American Guar. & Liab. Ins. Co. v. CNA Reins. Co., 16 A.D.3d 154, 791 N.Y.S.2d 525 [1st Dept.2005] ).
We have considered defendants' remaining contentions and find them unavailing. TOM, J.P., FRIEDMAN, RENWICK, FEINMAN, CLARK, JJ., concur.