Sacks & Sacks v. Home Insurance

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about April 21, 1993, which denied defendant-appellant’s motion for summary judgment, and declared that defendant-appellant must provide plaintiffs with a defense in the underlying action for legal malpractice, unanimously affirmed, with costs. While many of the acts of legal malpractice alleged in the underlying action may be within the prior acts exclusion of the policy, it is not clear that they all are. As the IAS Court stated, in the absence of a showing "that the allegations of the [underlying] complaint cast the pleading entirely within the policy exclusion”, defendant owes plaintiffs a duty to defend (see, Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 65-66). Concur — Carro, J. P., Rosenberger, Ellerin and Asch, JJ.