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The Judge granted defendant’s petition for a writ of habeas corpus

In an action for a declaratory judgment, defendant is obligated to defend and indemnify plaintiff under a lawyer’s professional liability insurance policy. Plaintiff is an attorney whose practice is concentrated primarily in criminal defense. In July 1999, defendant was indicted by a Nassau County grand jury and charged with various counts of sodomy in the first degree and related crimes arising from forcible sex conduct with his daughter. The acts were alleged to have occurred between when the victim was between ten and thirteen years old. Plaintiff was retained to represent defendant on these charges, as well as a New York County indictment charging him with similar activity.

Against plaintiff’s advice, defendant, a non-practicing attorney, waived his right to a jury on the Nassau County indictment and proceeded to trial. At trial, the complainant gave detailed testimony of sexual abuse by her father. The prosecutor also called a physician who testified concerning her examination of the victim’s genital area. The doctor used a device known as a colposcope to magnify the genital area and prepare certain photographs or “slides.” The doctor also testified as to her findings which, the doctor claimed, supported her opinion that the complainant had suffered “penetrating trauma” to the anus and the vagina. Additionally, the prosecutor called a clinical psychologist who testified about “child sex abuse accommodation syndrome.” According to the psychologist, children who are sexually abused frequently do not disclose the abuse until adolescence. The purpose of this testimony was to explain why the complainant failed to report the abuse for a number of years.

Plaintiff’s theory of defense was that the complainant had engaged in rape activity short of intercourse with a boyfriend of her own age, rather than anal and vaginal intercourse with her father. Through cross-examination of the People’s experts, plaintiff attempted to establish that the medical evidence was consistent with the former type of sexual activity. Plaintiff did not call or consult with a medical expert to render an opinion as to whether the objective findings were indicative of forcible penetration. Although plaintiff obtained the victim’s medical records and consulted with a former registered nurse, he did not obtain pretrial discovery of the colposcopic slides. Nor did plaintiff consult with or call an expert in the field of child sexual abuse accommodation syndrome, although at least one expert asserts that it is no longer regularly accepted in the research community. Defendant was convicted of all charges and was sentenced on three of the child sodomy charges to consecutive indeterminate terms of 12 1/2 to 25 years, with the sentences on other charges to run concurrently.

Defendant, now represented by other counsel, appealed to the Appellate Division on the ground of ineffective assistance of counsel. The Appellate Division reduced the sentences on the sodomy charges to the maximum legal sentence, 8 1/3 to 25 years, and otherwise affirmed the judgment of conviction. The Appellate Division ruled that, insofar as defendant’s ineffective assistance claim could be reviewed on the Appellate record, under the totality of the circumstances defendant received meaningful representation. Thereafter, the Court of Appeals denied leave to appeal from the order of the Appellate Division affirming the judgment of conviction.

Thereafter, defendant filed a petition for a writ of habeas corpus, alleging deprivation of his right to the effective assistance of counsel. Because defendant’s ineffective assistance claims had been adjudicated on the merits in state court, federal habeas corpus relief was available only if the district court concluded that the state ruling 1) involved an unreasonable application of clearly established federal law, or 2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

The Judge granted defendant’s petition for a writ of habeas corpus on the grounds of ineffective assistance of counsel. The Judge found that plaintiff’s performance was “constitutionally deficient” based upon his failure to call or consult with a medical expert concerning the forensic evidence of penetration or a psychologist concerning child sexual abuse accommodation syndrome. The court further found that “the failure of the trial court to consider the importance of the omitted expert testimony in denying petitioner’s motion to vacate the judgment of conviction is an unreasonable application of the Strickland standard”.

The federal court ordered defendant to be released unless state criminal proceedings were commenced against him within sixty days. The Judge’s order was affirmed by the United States Court of Appeals for the Second Circuit. The Nassau County District Attorney elected not to pursue the charges, and defendant was released from prison, the County Court of Nassau County dismissed the indictment against defendant.

Thereafter, defendant commenced a legal malpractice action against plaintiff in New York County. In the malpractice action, defendant named as additional defendants. Defendant’s theory was that these other attorneys were actually partners of plaintiff and vicariously liable for his malpractice during the criminal trial.

The plaintiff obtained a professional liability insurance policy from defendant Insurance Company. The policy provides coverage for acts or omissions that occur during the policy period, and those that occurred prior to the policy period, provided that “prior to the inception of the first policy issued by the company no insured had any basis 1) to believe that any insured had breached a professional duty, or 2) to foresee that any such act or omission or related act or omission might reasonably be expected to be the basis of a claim against any insured”

The policy contained a “Notice of Potential Claim” provision which states that “The insured, as a condition precedent to this policy, shall immediately provide notice to the company if any insured has any basis to believe that any insured has breached a professional duty or to foresee that any such act or omission might reasonably be expected to be the basis of a claim.”

In January 2008, plaintiff commenced the present action, seeking a declaratory judgment that the insurance company is obligated to defend and indemnify plaintiff in the underlying malpractice action. Plaintiff named additional defendants, asserting that they may be affected by the court’s judgment.

Insurance Law § 3420 provides that, “No policy or contract insuring against liability for injury to person, . . ., or against liability for injury to, or destruction of, property shall be issued or delivered in this state, unless it contains in substance the following provisions or provisions which are equally or more favorable to the insured … (4) a provision that failure to give any notice required to be given by such policy within the time prescribed therein shall not invalidate any claim made by the insured or by any other claimant if it shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible.” Such a provision, requiring that notice be given “as soon as was reasonably possible,” is contained in plaintiff’s professional liability policy.

If an insurer that does not receive timely notice in accordance with the policy, or as soon as reasonably possible, the insurer may disclaim coverage, whether it is prejudiced by the delay or not. While this rule produces harsh results in some cases, it also, by encouraging prompt notice, enables insurers to investigate claims promptly and thus to deter or detect ill-founded or fraudulent claims. A good faith belief of non-liability may excuse failure to give timely notice, provided the belief is reasonable. The insured bears the burden of establishing the reasonableness of the proffered excuse. Ordinarily, the question of whether the insured had a good-faith belief in non-liability, and whether that belief was reasonable, presents an issue of fact and not one of law. It is only when the facts are undisputed and not subject to conflicting inferences that the issue can be decided as a matter of law.

Plaintiff argues that the present case is “unique” because the malpractice claim arises from representation in a criminal case. Plaintiff suggests that because of the criminal client’s heavy burden of proof in a legal malpractice action, the attorney need not notify his insurer of a potential claim until the attorney is served with a summons and a legal malpractice complaint.

In legal malpractice actions generally, plaintiff must establish that “but for” the attorney’s negligence, the result of the prior case would have been more favorable. In a criminal case, the client may argue that but for the attorney’s failure to conduct a proper defense, as by asserting the 5th amendment privilege or getting evidence suppressed, the indictment would have been dismissed. However, as a matter of public policy, a criminal defendant may not maintain a malpractice action against the attorney unless he alleges “his innocence or a colorable claim of innocence of the underlying offense”. So long as the determination of guilt remains undisturbed, no cause of action will lie. The criminal client bears the “unique burden” to plead and prove that his conviction was due to the attorney’s actions alone and not due to some consequences of his guilt.

On a motion for summary judgment, it is the proponent’s burden to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers. However, if this showing is made, the burden shifts to the party opposing the summary judgment motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial.

“Under the state and federal constitutions, a criminal defendant is entitled to the effective assistance of counsel, defined as representation that is reasonably competent, conflict-free and single-mindedly devoted to the client’s best interests” Where no conflict of interest is involved, the New York standard for assessing the effectiveness of trial counsel is whether the attorney provided “meaningful representation”. Thus, New York adopts a “flexible approach that takes into account the fairness of the trial process as a whole and the totality of the representation”. While a showing of prejudice is “significant,” it is not an “indispensable element” of a state ineffective assistance claim. Under the federal ineffective assistance standard, the defendant must show that “but for” counsel’s inadequacy, the outcome of the trial would have been different. Thus, an attorney whose assistance has been found ineffective by the federal standard is on notice that the attorney may be subject to a potential malpractice claim.

Because the statute grants the injured person an independent right to give notice and to recover against the insurer, the injured party is not to be “charged vicariously with the insured’s delay”. “The injured person’s rights must be adjudged by the prospects for giving notice that were afforded him, not by those available to the insured. What is reasonably possible for the insured may not be reasonably possible for the person he has injured. The passage of time does not of itself make delay unreasonable. Thus, the pertinent inquiry is whether pursued his rights with as much diligence as was reasonably possible”. The injured person must be reasonably diligent in ascertaining coverage and in giving notice to the insurer that he is asserting a claim.

Since defendant offers no excuse for his failure to ascertain the identity of plaintiff’s insurer, defendant’s motion for summary judgment declaring that it has no obligation to indemnify Lemke or pay any benefits of the policy to defendant is granted. Defendant defendant’s motion for summary judgment declaring that he acted reasonably diligently with respect to the insurance policy is denied.

Here in Stephen Bilkis and Associates, our Nassau County Criminal Lawyers renders their services to our clients diligently and conscientiously. We make it a point that in every case, justice was served.

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