The issue presented is fairly narrow: Did the complaint set forth sufficient facts to sustain a viable cause of action to recover damages for legal malpractice or, alternatively, whether the cause of action should have been summarily dismissed based on the documentary proof submitted. Because I believe that the majority would impose a duty on lawyers that has heretofore not been recognized by any court in this state, I respectfully dissent. Moreover, I note that the plaintiffs proof was insufficient to defeat the defendant’s motion.
The complaint herein asserts that Kazimierz Golebiewski, a plaintiff in an action to recover damages for personal injuries, *44was injured in April 2000 in a construction accident at premises owned by the plaintiff. The complaint in pertinent part merely alleged that the defendant law firm committed malpractice by its failure to timely and properly notify the plaintiffs excess insurance carrier of the accident and lawsuit. Thus, to prevail, the plaintiff must allege and establish that the defendant law firm had such a duty (assuming such a duty existed), and that the defendant’s failure to perform such duty was the proximate cause of the plaintiffs damages. For the reasons stated below, I believe that the complaint is deficient. Moreover, even if the complaint was not fatally flawed, the plaintiff failed to demonstrate that a triable issue of fact exists as to the potential malpractice of the defendant law firm.
The evidence submitted on the defendant’s motion established the following: Upon being notified of the claim, the plaintiff forwarded the complaint in the underlying action to its insurance broker. In turn, the plaintiffs insurance broker notified the plaintiffs primary insurance carrier and allegedly notified the plaintiffs excess insurance carrier.1 The proof also demonstrated that sometime in July 2000 the defendant law firm was assigned as counsel to defend the underlying action. Thereafter, the plaintiffs primary carrier, Certain Underwriters at Lloyd’s of London (hereinafter Lloyd’s), by letter dated January 25, 2001, advised the plaintiff that Lloyd’s would defend the claim on its behalf and that it had provided the services of the defendant law firm for that purpose.2 The letter also noted that the amount sought in the underlying personal injury action exceeded the limits of its coverage under the primary policy of insurance. The letter went on to state, in pertinent part: “Furthermore you may wish to check with your insurance agent to determine if any excess insurance coverage is in force. If so we would urge you to quickly notify any excess insurance carrier of this suit situation” (emphasis added).
The complaint in the instant legal malpractice action alleges that the defendant law firm tendered the coverage under the primary policy after a motion for summary judgment on the issue of liability in the underlying action was granted. Before the *45damages portion of the trial in the underlying action, the defendant law firm notified the excess carrier and requested that it defend and indemnify the plaintiff at the damages portion of the trial in the underlying action. The excess carrier denied that it had ever received notice of the underlying claim from the insurance broker in January 2001. In denying coverage, the excess carrier took the position that the plaintiff was not a named insured and, even if that were not the case, the notice tendered to it was untimely. Ultimately a judgment in excess of the primary carrier’s policy limits was issued against the plaintiff. The plaintiff asserts that it did have excess insurance coverage available to it and submitted proof of a temporary binder to that effect, and that the defendant law firm took no steps to investigate the existence of such coverage or to properly notify the excess carrier of the claim. The within action, inter alia, to recover damages for legal malpractice ensued.
We recently observed in Lichtenstein v Barenbaum (23 AD3d 440, 440 [2005]), that
“[i]n order to establish a cause of action to recover damages for legal malpractice, a plaintiff must prove that (1) the attorney failed to exercise the care, skill, and diligence commonly possessed by a member of the legal profession, (2) the attorney’s conduct was a proximate cause of the loss sustained, (3) the plaintiff suffered actual damages as a direct result of the attorney’s actions or inaction, and (4) but for the attorney’s negligence, the plaintiff would have prevailed in the underlying action (see Porello v Longworth, 21 AD3d 541 [2005]; Levy v Greenberg, 19 AD3d 462 [2005]; Dimond v Kazmierczuk & McGrath, 15 AD3d 526 [2005]; Pistilli v Gandin, 10 AD3d 353 [2004]).”
An examination of the subject complaint reveals that it fails to allege sufficient facts to establish each of the requisite elements of a cause of action to recover damages for legal malpractice. Because the complaint does not assert facts establishing the duty owed, it fails to allege that the defendant law firm did not exercise the care and skill one could reasonably expect of the legal community (see Tortura v Sullivan Papain Block McGrath & Cannavo, PC., 21 AD3d 1082 [2005]). The complaint also failed to adequately allege facts showing that the attorney’s alleged breach of that duty was the proximate cause of the loss sustained (see Ferdinand v Crecca & Blair, 5 AD3d 538 [2004]). *46The complaint, even given the greatest of deference, merely consists of conclusory allegations of malpractice.
More significantly, the defendant law firm offered documentary proof that the plaintiff’s claim was rejected primarily on the expressed grounds that the plaintiff was not a covered party to the excess insurance policy in question. The defendant therefore met its initial burden by negating the possibility that any inaction on its part led to the disclaimer. In response, the plaintiff merely submitted an attorney’s affidavit accompanied by an exhibit consisting of an alleged temporary binder of its insurance broker, issued more than six weeks before the accident in question. No copy of the excess insurance policy upon which coverage is claimed was presented and there is no proof by a person possessed of personal knowledge that such a valid policy of excess insurance (covering the insured for the incident in question) ever existed by the issuance of a policy of insurance or an extension of a valid temporary binder of insurance pertaining to the plaintiff as an insured party. Thus, the plaintiff’s proof is simply insufficient and the cause of action to recover damages for legal malpractice was properly dismissed.
The facts as established by the various submissions also clearly indicated that the defendant law firm demonstrated that there was no breach of any duty owed to the plaintiff. Assuming that such a policy of excess insurance existed, the record shows that such policy would include language which would obligate its named insured to notify the excess carrier of the occurrence as soon as practicable and to notify it immediately of any lawsuit. Although no absolute time period has ever been established for such obligations, it has been held that the failure to provide such notice within a reasonable time is fatal to a claim for coverage (see Matter of American Cas. Ins. Co. v Silverman, 271 AD2d 528 [2000]). The burden is upon the insured to demonstrate that timely notice was given to the carrier (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742 [2005]). In some instances the failure to provide such notice within a 60-day time period has proved fatal to the claim (see Heydt Contr. Corp. v American Home Assur. Co., 146 AD2d 497 [1989]; Power Auth. of State of N.Y. v Westinghouse Elec. Corp., 117 AD2d 336 [1986]).
Assuming that a valid policy of excess insurance existed and that the plaintiff was an insured under that policy, the plaintiff has failed to allege or establish that, upon being designated as the plaintiffs counsel by the primary carrier, had the defendant *47law firm given immediate notice to the excess carrier, that such notice would have been timely. Therefore, the defendant established that the plaintiff failed to allege and establish the “but for” standard that is a requisite of any malpractice action (Levy v Greenberg, supra; see Porello v Longworth, supra; Dimond v Kazmierczuk & McGrath, supra; Pistilli v Gandin, supra). Therefore, no action to recover damages for legal malpractice can be sustained (see Perks v Lauto & Garabedian, 306 AD2d 261 [2003] [where an action to recover damages for legal malpractice was dismissed where a successor attorney to the defendant attorney also had an opportunity to investigate possible additional insurance coverage for a plaintiff]).
The foregoing begs the central issue here, to wit, that there is no case law in this state that imposes upon the attorney assigned by a primary carrier to verify that excess coverage indeed does not exist. At the outset, I accept that there may be situations where an attorney in the representation of a client may have a duty to investigate the existence of additional insurance coverage. For example, a plaintiffs attorney instituting an action to recover damages for injuries sustained as a result of a defendant’s negligent operation of an automobile is expected to explore all possible avenues of insurance coverage (see Perks v Lauto & Garabedian, supra). Similarly, in a personal injury action where recovery for lost wages is sought, a defendant’s attorney may have a duty to explore the extent, if any, of potential diminishment of the defendant’s exposure through the plaintiffs resort to relief pursuant to the provisions of the Workers’ Compensation Law (see Fireman’s Fund Ins. Co. v Farrell, 289 AD2d 286 [2001]). However, in both such cases the circumstances were such that the attorney was expected to have a superior capability to ascertain the existence of alternative coverage to that of the client.
On the other hand, where the circumstances are such that the client has superior or equal knowledge of potential sources of additional coverage, unless requested to investigate by the client, the attorney has no duty to explore hypothetical theories of additional insurance coverage (see Darby & Darby v VSI Intl., 95 NY2d 308 [2000]). In a somewhat analogous case (an action brought against the primary carrier alleging breach of a fiduciary duty to notify the excess carrier) involving circumstances indicating that the insured had the same knowledge as its primary carrier of potential excess coverage, the Appellate Division, Third Department, stated, in pertinent part: “Having had *48essentially the same information as defendant, plaintiff should not be permitted to shift to defendant the responsibility for failing to notify the excess carrier, an obligation imposed on plaintiff alone by its contract with the excess carrier. At most, plaintiffs evidence establishes defendant’s erroneous belief that plaintiffs liability would not exceed the primary policy limits” (Monarch Cortland v Columbia Cas. Co., 224 AD2d 135, 137-138 [1996]).
The facts here are far more compelling. The record indicates that the only party with knowledge of the incident and the potential need for excess coverage was the plaintiff. The record also indicates that the plaintiff had an obligation to notify the excess carrier of the happening of the incident (i.e., an obligation that preceded any designation of counsel on the primary policy of insurance after the commencement of the underlying action). The insured’s contractual responsibility to notify its alleged excess insurance carrier cannot be avoided or diminished through the subterfuge of attempting to foist such obligation on an unsuspecting law firm selected by the primary carrier particularly where, as here, the law firm may have been assigned the case after the time to notify the excess carrier had expired. The failure of the complaint to allege such circumstances which, if proved, would establish that the sole cause of the plaintiffs injury was the negligence of the defendant law firm, as previously discussed, is fatal. I therefore conclude that whether viewed as a motion pursuant to CPLR 3211 (a) (1) or (7), the subject complaint was properly dismissed. Accordingly, I would affirm the order, and I therefore respectfully dissent.
Schmidt, J.E, and Rivera, J., concur with Fisher, J.; Lifson, J., dissents in a separate opinion.
Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was to dismiss the first cause of action sounding in legal malpractice and substituting a provision therefor denying that branch of the motion; as so modified, the order is affirmed, with costs.
. The latter contention is not alleged in the underlying complaint. However, the defendant law firm attached copies of pleadings in an ancillary action wherein the plaintiff made the unequivocal statement of providing such notice to its broker.
. No explanation is offered as to the large gap of time from the appointment of the defendant law firm to the defendant’s issuance of the letter advising the plaintiff of its representation.