Orlando Garcia et al., Appellants-Respondents, v. AllCity Insurance Company et al., Respondents-Appellants

Orlando Garcia et al., Appellants-Respondents, v AllCity Insurance Company et al., Respondents-Appellants. [664 NYS2d 920] [MAJORITY] —Order, Supreme Court, New York County (Stuart Cohen, J.), entered on or about November 18, 1996, which denied plaintiffs’ motion and defendants’ cross motion for summary judgment, unanimously modified, on the law, to grant the cross motion to the extent of dismissing plaintiffs’ causes of action for legal malpractice, and otherwise affirmed, without costs. The motion court correctly concluded that summary judgment on plaintiffs’ bad-faith and breach-of-contract claims is precluded by numerous issues of fact, including whether plaintiff insured failed to make himself available to and cooperate with the insurer and the timeliness of the notice of the accident (see, Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 454-455). However, summary judgment dismissing the legal malpractice claims should have been granted in the absence of evidence sufficient to raise an issue as to whether defendant attorney represented plaintiff insured in the action. Plaintiffs’ claims for punitive damages were properly dismissed (see, Rocanova v Equitable Life Assur. Socy., 83 NY2d 603, 613; Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196, 203-204). We have reviewed the parties’ other arguments for affirmative relief and find them to be without merit. Concur— Sullivan, J. P., Milonas, Wallach, Williams and Tom, JJ.