EUROTECH CONSTRUCTION CORP v. FISCHETTI PESCE LLP (2019)

In support of its motion for leave to renew, plaintiff offered no new evidence that would change the prior determination that the breach of fiduciary duty claim was duplicative of the legal malpractice claim, which we affirmed in a prior appeal (Eurotech Constr. Corp. v. Fischetti & Pesce, LLP, 155 A.D.3d 437, 63 N.Y.S.3d 231 [1st Dept. 2017];  CPLR 2221[e][2] ).

Plaintiff failed to establish that there are no issues of fact as to its legal malpractice claim.  The claim is that defendant failed to timely communicate with plaintiff 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 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 (see Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 41–42, 827 N.Y.S.2d 231 [2d Dept. 2006], cited in Eurotech Constr. Corp., 155 A.D.3d at 437, 63 N.Y.S.3d 231).  Expert testimony would have been helpful because the issues here involve professional standards beyond the ordinary experience of non-lawyers (see Tran Han Ho v. Brackley, 69 A.D.3d 533, 534, 894 N.Y.S.2d 391 [1st Dept. 2010], lv denied 15 N.Y.3d 707, 908 N.Y.S.2d 160, 934 N.E.2d 894 [2010] ).