1 No. 114
Darby & Darby, P.C.,
Respondent,
v.
VSI International, Inc. et al.,
Appellants.
_________________________________________________________________
2000 NY Int. 111
October 24, 2000
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Steven Cooper, for appellants.
Jeffrey A. Jannuzzo, for respondent.
_________________________________________________________________
CIPARICK, J.:
The main issue presented by this appeal is whether a New York law firm
retained to defend a corporate client in a Florida patent infringement
litigation had a duty to advise the client about possible insurance
coverage for the costs of the litigation. Under these facts, we
conclude that it did not. Background
Defendant VSI is a Florida corporation that sells non- prescription
reading glasses to retail chain stores. In December 1990, defendant
Myron Orlinsky, VSI's Chief Executive Officer, retained plaintiff law
firm to represent VSI in two Florida lawsuits alleging patent,
trademark and trade dress infringement based on VSI's design of
"hanger tags" used to display reading glasses (see, Al-Site Corp. v
VSI Intl., Inc., 42 USPQ2d 1876 (SD Fla), affd in part, revd in part
174 F3d 1308 (Fed Cir)). Over the next two years, defendants incurred
substantial unpaid legal expenses. Although defendants paid a portion
of those bills, nearly $200,000 in legal fees remained outstanding.
After repeated demands for payment, plaintiff moved to withdraw as
counsel and was relieved on October 21, 1993. In August 1996,
plaintiff commenced the instant action to recover $ 209,199.33 in
unpaid attorneys' fees, plus interest and incidental costs.
On December 3, 1997, defendants answered the complaint and asserted
counterclaims, alleging legal malpractice and breach of fiduciary duty
based on plaintiff's failure to advise them of possible coverage for
their litigation expenses under their then existing general liability
SNIPPETS:
The main issue presented by this appeal is whether a New York law firm retained to defend a
Defendant VSI is a Florida corporation that sells non- prescription reading glasses to retail
Although defendants paid a portion of those bills, nearly $200,000 in legal fees remained
After repeated demands for payment, plaintiff moved to withdraw as counsel and was relieved
On December 3, 1997, defendants answered the complaint and asserted counterclaims, alleging
Defendants noted that, unlike plaintiff, successor counsel successfully secured coverage for
Plaintiff subsequently moved for summary judgment against VSI on its cause of action for an
Supreme Court denied plaintiff's motions for summary judgment and for dismissal of
The Appellate Division modified by awarding plaintiff summary judgment on its account stated
Defendants' claim is based on a then novel theory that patent insurance coverage was
Co., 18 USPQ2d 1567, revd 23 F3d 254;
At the time of plaintiff's representation, neither New York nor Florida recognized the duty
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