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Woodson v. American Transit Insurance Co.10/11/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Index No. 14661/90
This is an action by the Administratrix of a motorist's estate, against an insurer for bad faith refusal to settle a personal injury claim within the policy limits. It is also brought against various attorneys for legal malpractice in connection with the entry of a default judgment on the personal injury claim against the motorist, in excess of $4 million.
Plaintiff, beneficiary of the default judgment and Administratrix of the motorist's claims, moves for summary judgment (CPLR 3212) against the insurer and former counsel.
The insurer, defendant American Transit Insurance Company ("ATIC") moves for summary judgment dismissing the claims for lack of damages, failure to mitigate damages, absence of vicarious liability and judicial estoppel. The attorneys, Bisceglia & Oppenheim, P.C. ("B&O"), Philip Bisceglia ("Bisceglia"), Norman Volk ("Volk") and Norman Volk & Associates, P.C. ("NVA") (the "Attorney Defendants") move for summary judgment on statute of limitations grounds and failure to state a claim.
FACTS
The facts as here recited are taken from the parties' respective Rule 19-A Statements of Material Undisputed Facts and the affidavits and exhibits accompanying the motions. The background of this litigation has also been set forth in the decisions of: this court, dated September 22, 2004; Supreme Court, Bronx County (Howard Silver, J.); and the Court of Appeals (100NY2d 62 ), familiarity with which is presumed.
The action arises from a 1990 automobile accident in which the infant plaintiff, Zachary Woodson, was injured. Plaintiff, Tracy Woodson, is his mother. In 1992, in a separate personal injury action brought in the Supreme Court, Bronx County(Howard Silver, J.), Woodson obtained a default judgment as to liability against John Dansby, the driver of a leased truck allegedly involved in the accident. After an inquest, in March 1995, a final judgment of over $4,000,000 was entered against Dansby ("the Dansby Judgment"). The Dansby judgment was vacated by Bronx County Supreme Court in 2001 (affd 289 AD2d 158 [1st Dept 2001]), but ultimately reinstated by the Court of Appeals in 2003 (Woodson v Mendon Leasing Corp., 100 NY2d 62 [reversing]).
Plaintiff was appointed receiver of Dansby's property and commenced this action (Action No. 2) in 1998 to pursue his claims against the Attorney defendants for their conduct with respect to the default, and against ATIC for failing to settle within the policy limits. After Dansby died in 2002, plaintiff was appointed administratrix of his estate for the purpose of continuing the litigation.
THE ATTORNEY DEFENDANTS' MOTION TO DISMISS
The instant action was commenced on March 2, 1998 and is thus presumptively time-barred as to all acts of alleged malpractice occurring before March 2, 1995. The statute of limitations for professional malpractice is three years (CPLR 214 ). Plaintiff's assertion that the legal malpractice claim did not accrue until entry of the Dansby judgment on March 3, 1995 misconstrues the law. The actual misconduct relevant for accrual purposes occurred in connection with the default and inquest several years earlier. At the time the final judgment was entered, Dansby was represented by new counsel, Berger Stern & Webb ("BSW"), a firm he retained by letter dated February 7, 1995 and which filed a notice of appeal on his behalf the next day.
A claim for legal malpractice accrues on the date o
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