Justice McNamara
Click here to see Judicial Profile
http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=123999
PLAINTIFF law firm sought a judgment declaring that defendant professional liability insurer was obligated to defend and indemnify it in an action brought by Berkshire Bank involving an overdraft of an account maintained by plaintiff. Defendant denied coverage, arguing the claim by Berkshire was not based on any alleged breach of a professional duty as a lawyer. The court noted while the complaint recited the facts of the relationship between plaintiff and an alleged, non-party client, Asia Pacific, and how a counterfeit check came to plaintiff and was handled by it, none of those factual allegations were necessary to establish any element of any cause of action. It noted the attorney-client relationship between plaintiff and Asia Pacific merely furnished the circumstances under which the claim by Berkshire arose, but the claim itself was not based on an act or omission by plaintiff in providing legal services. Therefore, there were no facts known or unknown to defendant to suggest a reasonable possibility of coverage triggering a defense. As such, plaintiff was not entitled to be provided a defense or indemnification by its professional liability insurance carrier in the underling action brought by Berkshire.
