Appellate Division Courthouse of New York State in Manhattan, New York City, home of the First Department of the Appellate Division (Wikipedia) Appellate Division Courthouse of New York State in Manhattan, New York City, home of the First Department of the Appellate Division (Photo: Wikipedia)

A legal malpractice lawsuit lodged by a personal injury defendant against its legal counsel, alleging that the firm failed to tell it about evidence that would have triggered it timely notifying its excess insurance carrier, cannot be won on summary judgment, a state appeals court has decided.

Issues of fact related to possible malpractice remain, and therefore summary judgment is not in order, an Appellate Division, First Department, panel ruled Tuesday.

The panel wrote that the malpractice plaintiff claims that Long Island firm Fischetti & Pesce “failed to timely communicate with [malpractice] plaintiff [Eurotech Construction Corp.] about information obtained from testimony or bills of particular in the underlying personal injury action, and that, as a result, plaintiff was unable to timely notify its excess insurance provider that its primary insurance coverage might be exhausted.”

“Still unresolved,” the panel continued, “are the type and timing of any communication required, which depends on the agreed-upon scope of defendant’s representation of plaintiff, and the point at which defendant, in the exercise of the requisite professional skill and knowledge, should have realized that plaintiff’s primary insurance coverage could be exhausted,” citing Shaya B. Pacific LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker.

The unanimous panel was composed of Justices Dianne Renwick, Rosalyn Richter, Peter Tom, Marcy Kahn and Peter Moulton.

According to court documents, Eurotech Construction Corp. sued Fischetti & Pesce—a boutique firm that calls itself on its website “The Insurance Company’s Partner” and notes that it “represents clients insured by major insurance carriers, as well as self-insured clients”—on multiple grounds, including malpractice.

Eurotech, which had been impleaded as a third-party defendant in the underlying personal injury suit, alleged in its complaint against Fischetti & Pesce, among other things, that “the severity of the [personal injury plaintiff Thomas] McGinty injuries and extended rehabilitations were blatantly clear in the August 6, 2009 bill of particulars and November 3, 2010 McGinty’s deposition testimony. … A significant factor which was present to the defendants, in the aforementioned deposition testimony, was the evidence to which McGinty testified that he had been rendered totally disabled at the age of 47.”

Eurotech further alleged in its 2016-filed suit that Fischetti & Pesce knew it had an excess policy and that lack of proper triggering notification on the policy would “preclude [Eurotech’s] access to excess coverage and expose it to uninsured catastophic losses.”

The company’s complaint did not specify an amount of damages. But it made clear that a settlement demand made by McGinty, a carpenter allegedly injured while working at 7 World Trade Center, had exceeded the primary insurance limit of $1 million.

In its terse decision, the panel, which upheld the 2018 ruling of Manhattan Supreme Court Justice Robert Reed denying Eurotech’s motion for partial summary judgment on the malpractice claim, also noted that “expert testimony would have been helpful [in attempting to resolve Eurotech’s claim] because the issues here involve professional standards beyond the ordinary experience of non-lawyers.”

Steven A. Coploff, a partner at Steinberg & Cavaliere, represented Rockville Centre-based Fischetti & Pesce in the appeal. He could not be reached for comment Wednesday.

Gerard McCabe of FG McCabe & Associates represented Eurotech Construction Corp. and also could not be reached for comment.