Olinsky v. CNA Insurance Companies , 689 N.Y.S.2d 815 ( 1999 )

—Judgment unanimously modified on the law and as modified affirmed without costs and judgment granted in accordance with the following Memorandum: The record supports Supreme Court’s determination that defendant has no duty to defend and indemnify plaintiff in the underlying legal malpractice action. The only proof submitted by plaintiff to establish that the alleged legal malpractice occurred within the policy coverage period was the bill of particulars of the plaintiff in the underlying action. That document, however, was served in the underlying action after the court had granted the plaintiff therein partial summary judgment on liability, and only the issue of damages remained in that action. Thus, any additional acts of malpractice were irrelevant.

Although the court properly decided the merits of the parties’ claims, it should have declared the rights of the parties rather than dismissing the complaint (see, Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954). We modify the judgment, therefore, by reinstating the complaint and granting judgment in favor of defendant declaring that it has no duty to defend and indemnify plaintiff in the underlying action. (Appeal from Judgment of Supreme Court, Oswego County, Nicholson, J.— Summary Judgment.) Present — Pine, J. P., Hayes, Wisner, Hurlbutt and Scudder, JJ.