Legal Malpractice

Shocking Lapses in a Real Estate Legal Malpractice Case

By (Andrew Lavoott Bluestone)

Purchasers of real property should have bullet-proof protection on title and the conditions of sale.  There are any number of good, competent attorneys who are ready to handle a real estate buy-sell and to get the appropriate title search, survey and whatever else is necessary to ensure that the buyer gets what the bargain requires.  This simple fact renders Claude v Elgammal  ;2011 NY Slip Op 50024(U) ; Decided on January 14, 2011 ; Supreme Court, Kings County ; Battaglia, J. all the more shocking.  Here, seller's attorney hired an attorney for buyer to represent buyer at the closing.  The result was understandably less than optimal.
 

"Defendant asserts that she "did not represent the Plaintiff at the inception of the transaction for 272 Sumpter . . . [and] was hired by Yolanda A. Corion Esq. [the seller's attorney] to represent the Plaintiff for the closing only"; and further that she "was retained shortly before the closing, merely to represent [Plaintiff] regarding matters to be consummated at the closing . . . [and] Plaintiff was represented by another attorney at the inception of the transaction." (Affidavit in Support ¶ ¶ 8, 11.)

As to these matters, Defendant provides an affidavit of Ms. Corion, who asserts that, having been advised by her client, the seller, that Plaintiff's "attorney was not able to be present at the closing," she requested that Defendant "represent the Plaintiff for the closing only" (Affidavit in Support of Summary Judgment ¶ ¶ 3, 4.) Neither Defendant nor attorney Corion indicates that, prior to the closing, she ever spoke to Plaintiff or Plaintiff's putative attorney; indeed, neither even provides a name for the attorney.

Defendant provides no copy of an engagement letter or retainer agreement with Plaintiff that would have limited or qualified her representation of Plaintiff, nor does she state that she disclosed, either before or at the closing, her understanding of the scope of the representation to Plaintiff, including any possible conflict of interest (see Sitar v Sitar, 50 AD3d 667, 669-70 [2d Dept 2008].) Nor does Defendant demonstrate that as a matter of law her professional responsibility to Plaintiff was somehow limited or qualified by reason of her arrangement with the seller's attorney.

Indeed, Defendant does not describe how she exercised proper care, skill, and diligence in her representation of Plaintiff, other than to state that "[a]t the closing, [she] went through and explained in detail the meaning and import of each and every closing document with him, including without limitation the loan related documents" (Affidavit in Support ¶ 11.) Defendant's further statements that she "was not privy to [Plaintiff's] pre-closing [*4]communications, and when [she] met him at the closing he made no mention to [her] of any of his alleged oral understandings with [other] defendants" only highlights the absence of any statement that she discussed with Plaintiff any "pre-closing communications" or "oral understandings" as they might relate to the documents he was signing, or that she advised him as to the consequences of his signing as to any such "pre-closing communications" or "oral understandings."

Defendant fails to establish prima facie that she did not breach any duty owed to Plaintiff as his attorney in connection with his purchase of 272 Sumpter Street. Her contention that "plaintiff has provided nothing to support a claim of legal malpractice" is unavailing. "As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." (Mennerich v Esposito, 4 AD3d 399, 400 [2d Dept 2004] [quoting Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 (4th Dept 1992)]; see also Gonzalez v Beacon Terminal Assocs., L.P., 48 AD3d 518, 519 [2d Dept 2008].)"

Full post as published by New York Attorney Malpractice Blog on January 19, 2011 (boomark / email).