Garcia v Batalla

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Garcia v Batalla 2019 NY Slip Op 33861(U) December 9, 2019 Supreme Court, Bronx County Docket Number: 29184/2018 Judge: Lucindo Suarez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] BRONX COUNTY CLERK 12/13/2019 10:33 AM NYSCEF DOC. NO. 42 INDEX NO. 29184/2018E RECEIVED NYSCEF: 12/13/2019 SU PR EME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: PART 19 Mtn . Seqs. # I, 2 Index No.: 29 184/20 18 JUSTINO GARCIA, Plaintiff, - against - DECISION and ORDER PETER J. BATALLA JR. a/k/a PEDRO J. BATA LLA JR .. GE ICO INSU RANCE COM PANY. LYNN GOL DER, Defendants. PRES ENT: Hon. Luci nda Suarez The issue in Defendants Geico Insurance Company"s and Lynn Golde1.-s, (co ll ecti vely " Defendants") motion is whether Plaintiff's claim for "bad faith'" and legal malpractice should be dismissed. 1 This court finds in the affirm ati ve. I. Bad Fai th Claim Defendants seek to dismiss Pl aintiff's bad fai th claim wherein he claimed that Defendants engaged in ··bad fai th'. because they did not conduct a fore nsic evaluation of his car. I re claimed that if a fo rensic evaluation of hi s car was completed it would have vindi cated hi m from any civil li ability in the underlying civil lawsuit commenced against him in New York County as a result of a vehicul ar accident. In New York. there is no separate cause of action in tort for an insurer's bad fa ith failure to perform its obligations under an insurance policy. Cont. Cas. Co. v. Nationwide Indem. Co .. 1 Defendant Peter J. Bata lla Jr. a/k/a Pedro J. Batalla Jr:s motion (Mtn. Seq. # 2) seeking to dismiss Plaintiff s complaint for his failure to timely prov ide discovery. inter a/ia, is de nied as it fa iled to cornpon wi th the published ru les of the Labor Law. Products Liabili ty, and Non-Medical Professional Ma lpractice ("'LPM.. ) Part regard ing discovery re lated motions. 2 of 5 [*FILED: 2] BRONX COUNTY CLERK 12/13/2019 10:33 AM NYSCEF DOC. NO. 42 16 A. D.3d 353, 792 INDEX NO. 29184/2018E RECEIVED NYSCEF: 12/13/2019 .Y.S.2d 434 ( I st Dept 2005). Further, New York courts have held that •·the duties and obl igations of the parties to an insurance policy are contractual rather than fiduciary:· See Acquista v. NY l{fe Ins. Co., 285 A.D.2d 73, 730 .Y.S.2d 272 (1st Dep't 200 1). However, it is well settl ed that an insurer may be held liable for damages to its insured for the bad fa ith refusa l of a settlement offer within the policy limits. See Smith v. Gen. Acc. Ins. Co .. 91 N.Y.2d 648, 697 N.E.2d 168, 674 .Y.S.2d 267 (1998). This stems from the general principle that a covenant of good fa ith and fai r dealing is implied in all contracts, including insurance policies, as well as a recognition of the control an insurer maintains over claims against an insured. Id. Here, Defendants argued that Plaintiffs bad faith claim should be dismissed because there is no cognizable claim fo r .. bad faith" recognized in New York in the manner that it is currently plead. Defendants contended that ordinaril y a " bad faith'. claim arises agai nst an insurance company when it declines to settle a claim within the policy limits, therefore, exposing the insured to personal liabili ty in excess of the policy limits. Defendants posited that Plaintiff cannot allege a claim for bad faith as the underlying civil matter was settled within his policy limits. Moreover, Defendants argued that Plai ntitT s insurance poli cy expressly granted them discretion to in vestigate and settle claims as they saw fit. In oppositi on, Plaintiff contended that Defendants, in not cond ucting a fo rensic evaluation of hi s car as per his request, engaged in bad fai th when they ultimate ly settled the underlying civi l matter without the benefit of hi s purported defen se. This court find s that even accepti ng the facts as alleged in Plaintiffs complaint as true. and according him the bene fit of every possible favorab le inference, the facts as alleged (i.e .. fai lure to perform fo rensic evaluati on of his car) does not fi t within any cognizable legal theo1y 2 3 of 5 [*FILED: 3] BRONX COUNTY CLERK 12/13/2019 10:33 AM NYSCEF DOC. NO. 42 INDEX NO. 29184/2018E RECEIVED NYSCEF: 12/13/2019 for .. bad faith'" as recogni zed in New York. This court further find s that Pia inti ff conceded that the underly ing civil matter was settled within his policy limits. and the documentary evidence submitted established that Plaintiffs insurance poli cy expressly granted Defendants discretion to investigate and settle claims. Therefore, Plaintiffs "bad faith .. claim is dismissed pursuant to CPLR §32 11 (a)( I )(7). JI. Legal Malpractice Defendants seek to dismiss Plaintiffs legal malpractice claim wherein he alleged that Defendants impeded him from meaningfully participating in his defense of the underlying civil matter. Therefore. he claims that Defendant Lynn Golder, Geico's assigned counsel. breached her fiduciary duties, thereby, causing him emotional distress. A legal malpractice claim requires: (1) proof of the attorney·s negligence; (2) a showing that said negligence was the prox imate cause of Plaintiffs loss or injury; and (3) evidence of actual damages. Pellegrino v. File. 29 1 A.D.2d60, 738 N.Y.S.2d 320 ( Isl Dep't2002). In order to survive dismissal, the complaint must show that but for counsel's alleged malpractice, the plaint iff would not have sustained some actual ascertainable damages and speculati ve damages cannot be a basis for legal malpractice claim. Id. Here, Defendants argued that Plaintiff does not set forth any act or om ission on their part that proximately caused him to sustain any damages whatsoever. They further argued that Plaintiff cannot set forth a claim for actual damages where. as here, the claims against him were settled within hi s policy limits. In opposition, Plaintiff claims that his lega l malpractice is based on Defendants lack of communication throughout the pendency of the underlying ci vil matter, and their intentional obstruction in not allowing him to meaningfully participate in his defense of said matter. Therefore, Plaintiff contended that Defendant Lynn Golder' s actions constituted 3 4 of 5 [*FILED: 4] BRONX COUNTY CLERK 12/13/2019 10:33 AM NYSCEF DOC. NO. 42 INDEX NO. 29184/2018E RECEIVED NYSCEF: 12/13/2019 inadequate representation and as a result he was obligated to file a sperate lawsuit for emotional distress. Thi s court finds that Plaintiff failed to demonstrate a cognizable claim for legal ma lpractice. There was no showing made by Plaintiff that any acts or o mi ssion by Defendants proximately caused him to sustain any damages no r did he demonstrate any actual damages particularly when it was uncontroverted that the underly ing civil matter was settled within his policy limits. Furthermore, this court finds that Plaintiff's claim of emotional distress is not an actual ascertainable damage within the context of a legal malpractice claim. Therefore, Plaintiff's legal malpractice claim is dismissed pursuant to CPLR §32 1 I (a)( I )(7). Accord ingly, it is ORDERED, that Defendants Geico Insurance Company's and Lynn Golder' s motion (Mtn. Seq. # I) to dismiss the complaint against them is granted; and it is fw1her ORDERED, that Defendant Peter J. Batalla Jr. a/k/a Pedro J. Batalla Jr." s, motion (Mtn. Seq. # 2) to dismiss Plaintiff's complaint for hi s failure to timely provide discovery, inter alia, is den ied; and it is further ORDERED, that Plaintiff and Defendant Peter J. Batalla Jr. a/k/a Pedro J. Batalla Jr."s, shall appear for a preliminary conference o n January 14, 2020, at the Bronx County Courthouse located 851 Grand Concourse Bronx, New York 10451 , Part 19, Room 411, at 9:30 a.m. ; and it is fu11her ORDERED, that the C lerk of Court is directed to enter judg ment This constitutes the decision and order of the COU11. Dated: December 9, 2019 LUCINDO SUAREZ, J.S.C. 4 5 of 5

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