The case before the Westchester court is an action for a declaratory judgment that the defendant insurance company is obligated to defend and indemnify the plaintiff under a lawyers professional liability insurance policy. The plaintiff is an attorney whose practice is concentrated mainly in criminal defense.
The plaintiff attorney was retained to represent a defendant that had been indicted by the Nassau County Grand Jury and charged with various counts of sodomy in the first degree as well as several other forcible sexual conduct crimes with his daughter. The alleged acts were said to occur between March of 1995 and December of 1998. The victim was between 10 and 13 years old at the time the acts took place. The defendant was indicted in New York County for similar activity as well.
The defendant charged with the sexual misconduct is a non-practicing attorney. He went against the advice of the plaintiff attorney and waived his right to a jury on the indictment from the Nassau County court.
During the trial before the judge the victim daughter gave detailed testimony regarding the sexual abuse by her father. A physician testified during the trial as to the examination of the victim’s genital area. The doctorused a colposcopy in order to magnify the genital area and prepare photographic slides. The doctor testified that it was her opinion that the complainant had suffered from penetrating trauma to her anus and vagina.
A child psychiatrist also testified during the trial about child sexual abuse accommodation syndrome. The psychologist stated that it is common for abused children to not disclose the information until they are an adolescent. This testimony was to help explain why the victim had waited to report the abuse for so long.
The defense of the father was that the complainant had engaged in sexual activity with a boyfriend of her own age rather than vaginal and anal intercourse with her father.
The defendant was convicted on all charges by the judge in Nassau County. He appealed the conviction on the ground of ineffective counsel. The appellate court confirmed the convictions.
The defendant appealed the decision again and the appeal was granted on the basis of ineffective counsel. The judge found that by not calling a medical witness on behalf of the defendant resulted in prejudice of the defendant. As a result of this finding the defendant was released from prison and started a legal malpractice suit.
The plaintiff in this case is the defendant in the legal malpractice suit. The insurance policy in question has a notice of potential claim provision and the company states that the plaintiff failed to provide them with adequate notice of the potential claim against him.
The defendant insurance company is seeking summary judgment in regard to being obligated to defend or indemnify the plaintiff in the malpractice action. The plaintiff has cross moved for a summary judgment stating that the insurance company is required to defend and indemnify him in the malpractice action.
Court Discussion and Decision
The court has reviewed the facts of the case and finds that the plaintiff failed to provide the company with adequate notice of the potential case against him. For this reason, the court grants summary judgment in favor of the insurance company and they are not required to represent the plaintiff in the legal malpractice case.
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