Blanco v. Polanco

• Decision Date: 23 April 2014
• Citation: Blanco v. Polanco, 2014 NY Slip Op 2735, 116 A.D.3d 892, 986 N.Y.S.2d 151 (N.Y. App. Div. 2014)
• Parties: Karyll BLANCO, et al., respondents, v. Jose POLANCO, appellant, Your First Home, LLC, et al., defendants.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 892

986 N.Y.S.2d 151

2014 N.Y. Slip Op. 02735

Karyll BLANCO, et al., respondents,

v. Jose POLANCO, appellant,Your First Home, LLC, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

April 23, 2014.

Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Christopher Russo of counsel), for appellant.

Law Offices of Alana Barran, P.C., New York, N.Y., for respondents.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and HECTOR D. LASALLE, JJ.

In an action, inter alia, to recover damages for legal malpractice, the defendant Jose Polanco appeals from an order of the Supreme Court, Queens County (Lane, J.), dated May 25, 2012, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the appellant's motion which was for summary judgment dismissing so much of the third cause of action as alleged negligence and breach of fiduciary duty insofar as asserted against him, and substituting therefor a provision granting that branch of the motion, (2) by deleting the provision thereof denying that branch of the appellant's motion which was for summary judgment dismissing the fifth cause of action, which alleged unjust enrichment, insofar as asserted against him, and substituting therefor a provision granting that branch of the motion, and (3) by deleting the provision thereof denying that branch of the appellant's motion which was for summary judgment dismissing so much of the eighth cause of action as alleged negligent misrepresentation insofar as asserted against him, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

In September 2008, the plaintiffs, Karyll Blanco and Suamy Blanco, Jr. (hereinafter together the buyers), purchased a two-family home from the defendant Your First Home, LLC (hereinafter the seller). At the closing, the seller agreed to make certain repairs set forth on a punch list within 10 business days. Shortly after the closing, the buyers took occupancy of the premises.

According to the buyers, the seller never completed the punch list. Further, according to the buyers, after they moved into the premises, they discovered mold in various areas and found that water accumulated in the basement whenever it rained. Additionally, the buyers allege that when they tried to rent the apartment on the second floor of the house, they were informed that they could not do so because the house did not have a certificate of occupancy (hereinafter CO), and later learned that there were numerous “outstanding requirements” that needed to be satisfied before one could be obtained.

The buyers commenced this action against, among others, the seller and the attorney who represented the buyers in the transaction, the defendant Jose Polanco (hereinafter the appellant), alleging that they, and the other defendants in the action, colluded to defraud them in connection with the purchase of the premises by, inter alia, dissuading them from obtaining an inspection, representing that any repairs and construction required on the premises would be performed and paid for by the seller before or immediately after the closing, misrepresenting the condition of the premises, and misrepresenting that the apartment on the second floor could be rented immediately upon closing and that the premises had a CO. The buyers sought to recover damages from the appellant for, inter alia, legal malpractice, fraud, breach of fiduciary duty, negligence, unjust enrichment, and conspiracy to commit fraud.

The appellant moved for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court denied the motion.

The Supreme Court properly denied that branch of the appellant's motion which was for summary judgment dismissing so much of the third cause of action as sought to recover damages for legal malpractice. “In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence” ( Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385, quoting McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714). “ ‘To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements' ” ( Lever v. Roesch, 101 A.D.3d 954, 955, 957 N.Y.S.2d 354, quoting Verdi v. Jacoby & Meyers, LLP, 92 A.D.3d 771, 772, 938 N.Y.S.2d 806;see Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 A.D.3d 955, 956, 958 N.Y.S.2d 604). “Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise an issue of fact requiring a trial” ( Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 A.D.3d at 956, 958 N.Y.S.2d 604;see Duque v. Perez, 95 A.D.3d 937, 939, 944 N.Y.S.2d 586;Dempster v. Liotti, 86 A.D.3d 169, 178–181, 924 N.Y.S.2d 484).

The appellant established his prima facie entitlement to judgment as a matter of law dismissing so much of the third cause of action as sought to recover damages for legal malpractice. However, in opposition to the appellant's prima facie showing, the buyers raised a triable issue of fact. The buyers submitted evidence that the appellant had his nonattorney assistant pose as him and counsel the buyers throughout the transaction. The buyers also supplied proof that the appellant hastened them to sign the contract of sale without reading it and failed to advise them that by signing the contract, they were agreeing to purchase the premises “as is” and waiving their opportunity to conduct an inspection. The buyers also presented proof that, at the same time, the appellant reassured them that the seller would make needed repairs and advised them that they should trust the seller's opinion that a professional inspection was not necessary. Additionally, the buyers presented proof that the appellant failed to ask the seller to fulfill its obligation under the contract of sale to provide a CO or “a letter from the building department ... to the effect that” no CO is required. Based on the foregoing, the buyers raised triable issues of fact as to whether the appellant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in his advice and representation of them...