Opinion
July 29, 1996
Appeal from the Supreme Court, Queens County (Smith, J.).
Ordered that the orders are affirmed, with one bill of costs.
The plaintiffs hired the appellants Ginsberg Broome, P.C., Robert M. Ginsberg, and Alvin H. Broome (collectively Ginsberg Broome) to prosecute a claim for damages arising from, among other things, medical malpractice. However, the action was ultimately dismissed because, among other reasons, it was not commenced within the relevant Statute of Limitations period. The plaintiffs thereafter commenced this action, inter alia, to recover damages from Ginsberg Broome for legal malpractice. Ginsberg Broome commenced third-party actions. The first, for contribution, was against the defendants in the dismissed medical malpractice action, Maimonides Medical Center, Flatbush Medical Group and Edith Prostkoff, as Executrix of the Estate of Abraham Prostkoff (collectively the medical defendants). The second third-party action, sounding in both breach of contract and negligence, was against Ginsberg Broome's former malpractice insurance carrier, Home Insurance Co., and the two brokers through whom the insurance was procured, Bertholon-Rowland Corp. and Petrocelli Presti, Inc. (collectively the insurance defendants). Ginsberg Broome argue that the insurance defendants' failure to notify them of an additional period of coverage available after the policy term had expired resulted in a lack of insurance during the period at issue. We now affirm the dismissal of the third-party complaints as against the medical defendants and the insurance defendants.
Pursuant to CPLR 1401, "two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them" (see, Nassau Roofing Sheet Metal Co. v. Facilities Dev. Corp., 71 N.Y.2d 599, 602-603). Here, however, the injury allegedly caused by Ginsberg Broome, i.e., the loss of certain legal rights, is not the "same" injury as the one allegedly caused by the medical malpractice, although the damages might be identical (see, Jakobleff v. Cerrato, Sweeney Cohn, 97 A.D.2d 786; Nordheimer v. McMorrow, 176 A.D.2d 600; Alexander v Callanen, 104 Misc.2d 762). Accordingly, Ginsberg Broome's claim for contribution from the medical defendants was properly dismissed.
Further, the insurance defendants had no duty, either in contract or in tort, to notify Ginsberg Broome of the availability of an additional period of malpractice insurance coverage. To the contrary, the subject policy clearly places the burden of requesting such additional coverage on Ginsberg Broome (see, Stabulas v. Brooks Piece Dye Works Corp., 111 A.D.2d 803). Accordingly, Ginsberg Broome's claims against the insurance defendants were properly dismissed (see, Gertler v Goodgold, 66 N.Y.2d 946; Lovisa Constr. Co. v. Metropolitan Transp. Auth., 198 A.D.2d 333; Manchester Equip. Co. v. Panasonic Indus. Co., 141 A.D.2d 616, 618).
We have considered Ginsberg Broome's remaining contentions and find them to be without merit. Rosenblatt, J.P., O'Brien, Ritter and Pizzuto, JJ., concur.