Golden Ins. Co. v. Vogrin & Frimet, LLP

2025 NY Slip Op 31102(U)

New York Supreme Court, New York County·Decided April 4, 2025·No. Index No. 162162/2023·Unpublished

Opinion

Golden Ins. Co. v Vogrin & Frimet, LLP 2025 NY Slip Op 31102(U) April 4, 2025 Supreme Court, New York County Docket Number: Index No. 162162/2023 Judge: Mary V. Rosado 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. INDEX NO. 162162/2023 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 04/04/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice - - - - - - - - - - - - - - - --------------X INDEX NO. 162162/2023 GOLDEN INSURANCE COMPANY, A RISK RETENTION MOTION DATE 03/12/2024 GROUP,

Plaintiff, MOTION SEQ. NO. 002

-v- DECISION + ORDER ON VOGRIN & FRIMET, LLP, STALKER, P.C. MOTION Defendant. - - - - - - - - --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 21, 22, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59,60,61,62,63,64,65,66,67,68,69, 70, 74, 78 were read on this motion to/for DISMISSAL

Upon the foregoing documents, and after oral argument, which took place on January 14,

2025, where Evan S. Fensterstock, Esq. appeared for Plaintiff Golden Insurance Company, a Risk

Retention Group ("Plaintiff'), Corey Cohen, Esq. appeared for Defendant Vogrin & Frimet LLP

("Vogrin & Frimet") and Nicholas Goodman, Esq. appeared for Defendant Stalker, P.C.

("Stalker") (collectively "Defendants"), Stalker's motion to dismiss Plaintiffs Complaint pursuant

to CPLR 321 l(a)(7) is granted in part and denied in part.

I. Background

Plaintiff issued a commercial general liability insurance policy (the "Policy") to non-party

Ingrid Home LLC ("Ingrid"). Plaintiff alleges that pursuant to the terms of the Policy, damages

for bodily injury were only covered if incurred at a construction project at 356 E. 8th Street, New

York, NY 10009 (the "Premises"). On January 14, 2016, Ingrid was notified of an accident on the

Premises involving a worker, Luis Alberto Pomboza, ("Pomboza"). On January 20, 2016, Ingrid's

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counsel forwarded that letter to Plaintiff and Plaintiffs claim administrator. On March 4, 2016,

Plaintiffs counsel, denied coverage.

On December 21, 2017, Pomboza's estate commenced a lawsuit against Ingrid and others

(the "Underlying Lawsuit"). In January 2018, Ingrid notified Plaintiff of the Complaint, and

Plaintiff issued a reservation of rights letter acknowledging its obligation to defend Ingrid subject

to the right to disclaim coverage. Subsequently, Plaintiff retained Defendants to prosecute

declaratory judgment action seeking a declaration no coverage was owed to Ingrid in the

Underlying Lawsuit. The declaratory judgment action was filed on February 10, 2020 (the

"Declaratory Judgment Action"). Ingrid asserted as an affirmative defense that Plaintiff failed to

comply with§ 3420(d)(2).

In the Declaratory Judgment Action, Defendants moved for summary judgment on behalf

of Plaintiff while Ingrid also moved for summary judgment. Defendants failed to raise precedent

holding that risk retention groups are not bound by the requirements of § 3420(d)(2). The

complaint was dismissed based on Plaintiffs alleged failure to comply with § 3420(d)(2). A

motion to reconsider was denied because Defendants raised Court of Appeals precedent for the

first time on reargument. The Second Circuit affirmed the lower court's decision. Because the

Declaratory Judgment Action failed, Plaintiff settled the Underlying Action for $900,000. Plaintiff

now sues Defendants alleging legal malpractice and negligence. In this motion, Stalker moves to

dismiss Plaintiffs Complaint pursuant to CPLR 321 l(a)(7).

II. Discussion

A. Standard

When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must

give the Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings

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and determines only whether the alleged facts fit within any cognizable legal theory (Sassi v

Mobile Life Support Services, Inc., 37 NY3d 236, 239 [2021 ]). All factual allegations must be

accepted as true (Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172, 174 [1st Dept

2004]).

B. Legal Malpractice

Stalker's motion to dismiss Plaintiff's legal malpractice claim is denied. The crux of

Stalker's motion is that Plaintiff fails to allege adequately that Defendants' failure to raise the

operative Court of Appeals case, Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk Retention Group

LLC, 34 NY3d 1 (2019), proximately caused the damages. They argue even had Defendants raised

Nadkos, Defendants may still have lost based on Ingrid Homes' other defenses, including waiver

and estoppel. They argue even had Defendants raised Nadkos, Defendants may still have lost based

on Ingrid's other defenses, including waiver and estoppel. However, this argument is contrary to

the Southern District of New York's decision on the motion for summary judgment (NYSCEF

Doc. 64).

The decisions by the Southern District of New York and the Second Circuit framed the

dispositive issue as one of compliance with Insurance Law § 3420(d)(2). Judge Lewis Liman

explicitly stated that Plaintiff "failed to provide a timely disclaimer under the New York Insurance

Law, and thus may not now issue a disclaimer. This is not a matter of waiver." On appeal, the

Second Circuit's decision focused solely on timely disclaimer under Insurance Law§ 3420(d)(2)

and made no mention of the common law doctrines of waiver and estoppel (see Golden Ins. Co. v

Ingrid House LLC, 2022 WL 2165252 at *2-3 [2d Cir. 2022]). Moreover, the Second Circuit

explicitly declined to address the application of Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk

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Retention Group LLC, 34 NY3d 1 (2019) because it was raised for the first time on a motion to

reconsider (Golden, supra at *4).

For purposes of a pre-answer motion to dismiss, the pleadings and annexed supporting

documents show that Plaintiffs allegations adequately allege proximate cause and do not fall into

the realm of mere speculation. While Defendants are welcome to defend proximate cause pursuant

to the "case within a case" doctrine (see, e.g. Carasco v Schlesinger, 222 AD3d 476,477 [1st Dept

2023]), which may ultimately be successful on a subsequent motion for summary judgment, at this

juncture, Defendants' arguments are insufficient to win a pre-answer motion to dismiss.

C. Negligence

Stalker's motion to dismiss Plaintiffs second cause of action alleging ordinary negligence

is granted. The ordinary negligence claim, which seeks the same damages and arises from the same

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