Noroian v. Cohen

7 A.D.3d 288, 776 N.Y.S.2d 787, 2004 N.Y. App. Div. LEXIS 6600

Opinion

Order, Supreme Court, New York County (Louis B. York, J.), entered January 16, 2003, which, in this action alleging legal malpractice, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff admitted during his testimony in the underlying declaratory judgment action against his insurer, in which he was represented by defendants, that he received a declaration page from his insurer indicating that his uninsured/ underinsured coverage was being deleted. The declaration page, once received, provided conclusive presumptive notice of the change in coverage (see Chase’s Cigar Store v Stam Agency, 281 AD2d 911, 912 [2001]; Brownstein v Travelers Cos., 235 AD2d 811, 813 [1997]; Madhvani v Sheehan, 234 AD2d 652 [1996]). Moreover, plaintiff conceded that his wife had endorsed the refund check issued by reason of the deletion of the coverage, and that he renewed the policy several times thereafter without questioning the deletion. Inasmuch as the declaratory judgment action was therefore patently infirm, counsel’s withdrawal of the action at the court’s urging, to which plaintiff voluntarily stipulated, could not have caused plaintiff to sustain any damages. Plaintiffs action was therefore properly dismissed (see Pellegrino v File, 291 AD2d 60, 63 [2002], lv denied 98 NY2d 606 [2002]). Concur—Tom, J.P., Saxe, Lerner, Marlow and Gonzalez, JJ.