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So, you have decided you have better things to do with your money than to pay your lawyer the fees he has incurred in representing you.  The lawyer sues you for his fees.  You make the further decision to file a counterclaim for legal malpractice even though you know there is no basis for the malpractice claim.  Your strategy is that the malpractice claim will induce the lawyer to drop his suit for fees or to settle the claim cheaply.  At the very worse, the countersuit will delay the day you actually have to pay your former lawyer. 

What could go wrong? 

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New York Governor Eliot Spitzer vetoed legislation that would have imposed a “material prejudice” standard on insurers who deny coverage based on late notice. The bill would also have given claimants a right to bring a direct action against insurers. The bill, if signed, would have imposed dramatic change in New York insurance law.

The bill presented to Governor Spitzer would have made two significant changes in the existing law. First, it would have created a “material prejudice” standard with regard to late notice. In this regard, the bill provided that an insurer “shall not deny coverage for a claim based on the failure of an insured to give timely notice of claim unless [the insurer is] able to demonstrate that it has suffered material prejudice as a result of the delayed notice.” The governor noted that “there are some drafting issues with these provisions.” Of particular concern to the Governor was the burden of proof imposed under the bill. The Governor indicated that if the bill were modified to preclude a defense of late notice where there was no prejudice to the insurer, he would sign it.

Second, the bill sought to amend New York’s declaratory judgment statute by permitting a party who has interposed a claim against a policyholder to bring a declaratory judgment action against that party’s insurers. Governor Spitzer expressed concern that this provision would increase litigation and he urged that his concern be reviewed. Governor Spitzer stated: “this bill’s dual goals – streamlining litigation and prohibiting the denial of coverage for mere technicalities – are sound, and hopefully we can enact a new bill that accomplishes these important goals in a manner that protects the interests of claimants, policyholders and insurers alike.” The Governor’s staff and the Superintendent of Insurance will meet with the legislature and interested parties to further consider these issues.

Indications are that the legislation will be reintroduced in 2008.

HILLSBOROUGH & MANVILLE – Somerset County officials’ vision for a winding, contiguous greenway along the scenic Raritan River corridor has received a significant boost with the acquisition of 197 acres straddling these two municipalities.

The county closed last week on the Maverick Construction Co. tract that includes the former landfill used by Johns-Manville Corp.

The landfill section of the property has been capped, as required by state regulations, and will not be used. But the remainder of the property is envisioned for passive recreation as part of the Raritan River Greenway, Freeholder Director Robert Zaborowski said.

“We already have acquired several hundred acres as part of this greenway,” he said. “The addition of almost 200 more is a tremendous asset to our preservation efforts in this area.” He noted that the Maverick property acquisition brings the total of preserved open space in Somerset County to just over 10,000 acres, or half the county’s ultimate preservation goal.

Purchase price for the land was $700,000. Maverick Construction Co., based in Hillsborough, was owned by Frank A. Marchello, who died in 2002. The landfill portion of the tract is just under half the total acreage.

The county has agreed to allow continued use of a ball field and clubhouse on the property by the Manville Youth Athletic League which will be guaranteed through a long-term lease agreement with the Borough of Manville.

Freeholder Director Zaborowski commended the Somerset County Park Commission, the New Jersey Department of Environmental Protection (NJDEP) and consultants Cuyler-Burk of Parsippany and Kleinfelder of Hamilton for bringing the purchase to fruition.

He credited Somerset County Parks Directory Raymond Brown and Planning and Land Acquisition Manager Tom Boccino; attorneys Ed Collins, Andrew Craig and Richard A. Crooker of Cuyler Burk; professional engineer Donald W. Richardson of Kleinfelder; NJDEP Assistant Commissioner of Site Remediation Irene Kropp; and Ken Kloo and Ian Curtis of the NJDEP Office of Brownfields Reuse.