Pellechia v. Estate of DiMartino
To prevail on a subrogation claim, a plaintiff must establish she obtained a final judgment against the insured for a loss covered by the insurance policy and that the judgment has remained unsatisfied for 30 days. The plaintiff, Linda Pellechia, alleged the following facts, which have not been proved. Pellechia hired Attorney James DiMartino to represent her, when Pellechia decided to sell property in Medford, New York. In May 2005, a prospective purchaser paid $13,750 as a deposit, and a closing was scheduled for December. The buyer's attorney asked that Attorney DiMartino contact him about subdivision permits. Allegedly, although DiMartino responded that he would take care of it, Pellechia discovered that permits were not obtained. Tenants who had been paying rent vacated the residence, in anticipation of the December closing. Pellechia did not receive rental income for several months, because the original buyers exercised their option to extend the closing to June 2006. In or about March 2006, a municipal clerk informed Pellechia that the subdivision permits might take another year to obtain. Allegedly, Attorney DiMartino advised Pellechia to return the original buyer's deposit, to cancel the contract and to sell the property to a backup buyer. In July 2006, the original buyer filed a lis pendens on the land records. In early 2007, the backup buyer rescinded its contract. The plaintiff's property was vandalized and condemned. The bank sought to foreclose. In November 2008, DiMartino was murdered. Pellechia sued DiMartino's estate, alleging that Attorney DiMartino failed to protect her interests. Pellechia's complaint alleged breach of contract, fraud, breach of fiduciary duty and legal malpractice. Pellechia also sued American Guarantee & Liability Insurance Co., which allegedly insured DiMartino. American Guarantee moved to dismiss. The District Court granted the motion, because the plaintiff failed to establish she recovered a final judgment against DiMartino's estate for a loss covered by the insurance policy and that the judgment remained unsatisfied for 30 days.