On 9 January 2009, plaintiffs sought a summary judgment declaring that defendant, a Surety Company, was obligated to defend and indemnify them in the underlying personal injury action in the Supreme Court of Bronx County.
On 5 May 2009, the court granted that portion of plaintiff’s motion seeking to declare that defendant was obligated to defend them in the underlying personal injury action, but that portion of the motion seeking a declaration that defendant was obligated to indemnify plaintiffs was denied as premature; the court severed that portion of plaintiffs’ earlier motion seeking reimbursement for defense costs already expended, and referred the matter to a Special Referee to hear and report with recommendations regarding such reimbursement.
Thereafter, plaintiffs move, for leave to renew their motion.
Here, plaintiffs seek to renew their argument with respect to that portion of the court’s earlier decision that decided it was premature to determine issues of indemnification because liability for the underlying personal injury action had yet to be determined. Plaintiffs presented an affidavit from an eyewitness to the underlying accident, which, they assert, was not available to them at the time that their earlier motion was filed; and indicated that the underlying plaintiff recently filed a summary judgment motion in the personal injury action, which has yet to be decided.
Under the rules, in a motion for leave to renew, it is required that it is identified specifically as such; that it is based upon new facts not offered on the prior motion that would change the prior determination or demonstrate that there has been a change in the law that would change the prior determination; and that it contains reasonable justification for the failure to present such facts on the prior motion. In this case, defendants do not argue that the affidavit now presented by plaintiffs was not previously available to them, but oppose the motion on the ground that triable issues of fact continue to exist with respect to plaintiffs’ liability in the underlying personal injury action. It must be noted that the court’s earlier determination was predicated on the fact that the trial court hearing the underlying personal injury action had not yet reached a conclusion as to the liability of the parties. So, even if the affidavit of an eyewitness were to address some of the liability questions raised by the facts of the underlying personal injury action, it would be inappropriate for the court to make a determination of liability in the underlying personal injury action while that issue is still pending. In other words, in the absence of a jury finding in the underlying action, any claim of an entitlement to indemnification would indeed be premature. Thus, even though plaintiffs have provided evidence not previously available to them, such evidence does not address the reasoning of the Court, as expressed in its earlier decision, in denying plaintiffs’ earlier requested relief.
Accordingly, the motion of plaintiffs for leave to renew their motion for summary judgment on the issue of indemnification is granted; and that, upon renewal, the Court adheres to its decision and order denying as premature plaintiff’s request for a declaration that defendant Surety Company has a duty to indemnify them in the underlying personal injury action.
Plaintiff is a laborer who sustained an injury in a construction site, a construction accident. He was then referred to defendant-appellant (appellant), a law firm that specializes in workers’ compensation, by defendant-respondent (respondent), also a law firm but specializes in personal injury. Plaintiff claims that appellant committed malpractice by failing to advise him of possible personal injury claims he had against third parties and the resulting need to consult with a personal injury lawyer, or to at least ascertain whether any such claims were being pursued or considered on his behalf by respondent. In opposition, appellant seeks a dismissal on the ground that it owed plaintiff no such duty of advice or inquiry given that plaintiff had already consulted with respondent and indeed testified at deposition that he signed respondent’s retainer letter. In response, respondent asserts that it was never retained by plaintiff. Plaintiff then asserts that the subject of his personal injury claims repeatedly came up at his workers’ compensation hearing, that appellant repeatedly assured him that such claims were being taken care of, and that he relied on appellant for guidance and information concerning such claims because he had reason to believe that appellant and respondent were closely associated and in regular communication concerning his available remedies.
Here, assuming in appellant’s favor that, as a matter of law, a workers’ compensation lawyer owes an injured person no duty of advice or inquiry concerning possible personal injury claims once the injured person has consulted with a personal injury lawyer, such proposition would not negate appellant’s affirmative duty to ensure that plaintiff understood the limits of appellant’s representation. Thus, the court finds that a material issue of fact does exist as shown by plaintiff’s alleged repeated questions to appellant concerning the status of his personal injury claims and appellant’s alleged repeated responses that such claims were being taken care of.
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