        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

930
CA 13-00377
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, AND WHALEN, JJ.


UTICA CUTLERY COMPANY, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

HISCOCK & BARCLAY, LLP, DEFENDANT-APPELLANT.


HISCOCK & BARCLAY, LLP, SYRACUSE (ROBERT A. BARRER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CARL J. COCHI, UTICA, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (David
A. Murad, J.), entered December 13, 2012. The order denied the motion
of defendant for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this legal malpractice action
seeking damages based on defendant’s alleged failure to investigate
and notify plaintiff in a timely manner of the available insurance
covering plaintiff with respect to the underlying lawsuit against it
for, inter alia, trade dress infringement. Supreme Court properly
denied defendant’s motion for summary judgment seeking dismissal of
the complaint. To establish a cause of action for legal malpractice,
“ ‘a plaintiff must prove (1) that the defendant attorney failed to
exercise that degree of care, skill, and diligence commonly possessed
by a member of the legal community, (2) proximate cause, (3) damages,
and (4) that the plaintiff would have been successful in the
underlying action had the attorney exercised due care’ ” (Phillips v
Moran & Kufta, P.C., 53 AD3d 1044, 1044-1045; see generally McCoy v
Feinman, 99 NY2d 295, 301-302; Williams v Kublick, 302 AD2d 961, 961).

     Defendant moved for summary judgment on the ground that plaintiff
had a contractual duty and actual knowledge of the requirement to
notify its insurers of the commencement of the underlying action,
which superceded any alleged duty that defendant had to plaintiff. We
conclude that defendant “failed to meet its burden of establishing as
a matter of law that any alleged negligence on its part was not a
proximate cause of plaintiff[’s] damages” (New Kayak Pool Corp. v
Kavinoky Cook LLP, 74 AD3d 1852, 1853). Notably, a plaintiff in a
legal malpractice action must establish that the defendant law firm
was a proximate cause of damages, but need not establish that it was
the proximate cause (see Barnett v Schwartz, 47 AD3d 197, 204-205).
                                 -2-                          930
                                                        CA 13-00377

Defendant also failed to establish that plaintiff’s conduct was an
intervening and superseding cause such that defendant’s alleged
negligence was not a proximate cause of any damages (cf. Alden v
Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz [“The People’s
Lawyer”], 91 AD3d 1311, 1311; see generally Arnav Indus., Inc.
Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96
NY2d 300, 304-305).

     Contrary to defendant’s contention, the court properly denied its
alternative request for partial summary judgment on the second and
fourth affirmative defenses and dismissal of a particular claim for
damages. Defendant correctly notes that the insurance policies
required plaintiff to give timely notice of the underlying action and
properly alleges the culpable conduct of plaintiff in failing to give
notice in a timely manner to the insurance companies as an affirmative
defense (see generally Arnav Indus., Inc. Retirement Trust, 96 NY2d at
305 n 2). On this record, however, defendant has not established that
plaintiff was comparatively negligent as a matter of law. Plaintiff’s
president explained at his deposition and in his affidavit the reason
why he failed to give timely notice to the insurance companies, i.e.,
he did not believe that the underlying claim was covered by insurance.
Whether that belief was reasonable and negated any culpable conduct on
plaintiff’s part is for a jury to determine. We further conclude that
defendant failed to establish as a matter of law that the insurance
policies would not have covered certain damages paid by plaintiff in
the underlying action.




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
