Greene v. Payne, Wood and Littlejohn

• Decision Date: 25 October 1993
• Citation: 197 A.D.2d 664,602 N.Y.S.2d 883
• Parties: Marvin H. GREENE, et al., Appellants, v. PAYNE, WOOD AND LITTLEJOHN, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 883

602 N.Y.S.2d 883

197 A.D.2d 664

Marvin H. GREENE, et al., Appellants, v. PAYNE, WOOD AND LITTLEJOHN, etc., et al., Respondents.

Supreme Court, Appellate Division Second Department.

Oct. 25, 1993.

Benjamin H. Segal, New York City, for appellants.

Drake, Sommers, Loeb, Tarshis & Catania, P.C., Newburgh (Stephen J. Gaba, of counsel), for respondents.

Before BRACKEN, J.P., and SULLIVAN, EIBER and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated September 22, 1992, which denied their motion for partial summary judgment on their first cause of action.

ORDERED that the order is affirmed, with costs.

In 1952 the plaintiffs purchased approximately 710 acres of land in the Town of Blooming Grove in order to develop a vacation resort consisting of a hotel, bungalow units, a swimming pool, and other recreational facilities. The plaintiffs subsequently submitted a map to the Town Planning Board, which designated a total of 136 acres of the parcel for use as a bungalow colony. The proposed map was approved by the Planning Board in October 1960 and the plaintiffs subsequently constructed approximately 125 bungalow units on a portion of their property.

Fourteen years later, on October 7, 1974, the Town enacted a new zoning ordinance which expressly eliminated bungalow colonies as a permitted use. Thereafter, in June 1986 the plaintiffs, asserting a vested right to a nonconforming use of the entire 136 acres designated in the approved 1960 map as a bungalow colony, applied to the Town's building inspector for a permit to construct an additional 419 bungalow units on their property. When the Town refused to issue the required permit, the plaintiffs retained the defendants to represent them. The defendants subsequently commenced a Federal civil rights suit on the plaintiffs' behalf, alleging that the Town's use of its zoning powers to deny the plaintiffs' application for a building permit constituted a deprivation of property without due process in violation of 42 U.S.C. § 1983. Following a jury trial in the United States District Court for the Southern District of New York, the plaintiffs' Federal civil rights claim was dismissed, but they were awarded judgment on an unpleaded pendent claim for a declaration that they had "a valid vested right to improve the bungalow colony by the construction of an additional 419 units" under State law. The United States Court of Appeals for the Second Circuit subsequently reversed the declaratory judgment in favor of the plaintiffs, however, concluding that the District Court had erred in exercising pendent jurisdiction over the State law component of the plaintiffs' claim pursuant to 42 U.S.C. § 1983 because the plaintiffs' complaint failed to separately plead a pendent State claim for declaratory relief.

The plaintiffs then commenced this legal malpractice action against the defendants, and thereafter moved for summary judgment on their first cause of action, contending that they would have obtained a declaratory judgment in their favor in the Federal suit but for the negligence of the defendants in failing to separately plead and label a pendent State claim for declaratory relief. In opposition to the motion, the defendants argued that, prior to the determination of the Second Circuit in the plaintiffs' suit against the Town, controlling Federal precedent did not require a State law claim to be specifically labeled and separately identified as a "pendent State law claim" in a Federal complaint. The defendants thus contended that the Second Circuit decision marked a sudden change in the existing law which could not have been anticipated. The Supreme Court denied the plaintiffs' motion for summary judgment, concluding that the plaintiffs had failed to establish, as a matter of law, that the defendants deviated from good and accepted legal practice in drafting the Federal pleadings. We agree.

In order to obtain summary judgment on a legal malpractice claim, the...