Opinion
2014-01-23
RISK CONTROL ASSOCIATES INSURANCE GROUP, Plaintiff–Appellant, v. MALOOF, LEBOWITZ, CONNAHAN & OLESKE, P.C., et al., Defendants–Respondents.
Behman Hambelton, LLP, New York (Crystal E. Nagy of counsel), for appellant. Schenck, Price, Smith & King, LLP, New York (John P. Campbell of counsel), for respondents.
Behman Hambelton, LLP, New York (Crystal E. Nagy of counsel), for appellant. Schenck, Price, Smith & King, LLP, New York (John P. Campbell of counsel), for respondents.
Order, Supreme Court, New York County (Debra A. James, J.), entered October 16, 2012, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff, a claims administrator for an insurer, commenced this action alleging legal malpractice against defendants, who were retained to represent the insurer in a personal injury action. Acknowledging that it is not in privity with defendants, plaintiff contends that it may bring the cause of action by virtue of its relationship of near privity with them ( see Federal Ins. Co. v. North Am. Specialty Ins. Co., 47 A.D.3d 52, 59, 60–61, 847 N.Y.S.2d 7 [1st Dept.2007] ). However, plaintiff does not allege that it had a contractual obligation to pay for the loss in the personal injury action ( compare Allianz Underwriters Ins. Co. v. Landmark Ins. Co., 13 A.D.3d 172, 787 N.Y.S.2d 15 [1st Dept.2004] [excess insurer alleged relationship of near privity with counsel hired by primary carrier to represent defendant in underlying action] ). Nor does it allege that it sustained actual damages because of this obligation ( see AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 434, 834 N.Y.S.2d 705, 866 N.E.2d 1033 [2007] ). Similarly, plaintiff's factual allegations do not suffice to state an equitable subrogation cause of action against defendants ( see Winkelmann v. Excelsior Ins. Co., 85 N.Y.2d 577, 581, 626 N.Y.S.2d 994, 650 N.E.2d 841 [1995] ). MAZZARELLI, J.P., FRIEDMAN, RENWICK, MOSKOWITZ, RICHTER, JJ., concur.