Kehoe v. Abate

• Decision Date: 23 May 2019
• Docket Number: 527294
• Citation: 100 N.Y.S.3d 786,172 A.D.3d 1800
• Parties: Peter R. KEHOE, Respondent—Appellant, v. Elda ABATE et al., Appellants—Respondents.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1800
100 N.Y.S.3d 786

Peter R. KEHOE, Respondent—Appellant,
v.
Elda ABATE et al., Appellants—Respondents.

527294

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

Calendar Date: March 28, 2019
Decided and Entered: May 23, 2019

100 N.Y.S.3d 787

Girvin & Ferlazzo, PC, Albany (Salvatore D. Ferlazzo of counsel), for appellants-respondents.

Law Offices of Benjamin W. Hill, PLLC, Albany (Benjamin W. Hill of counsel), for respondent-appellant.

Before: Garry, P.J., Egan Jr., Lynch and Aarons, JJ.

MEMORANDUM AND ORDER

Lynch, J.

100 N.Y.S.3d 788

172 A.D.3d 1800

Cross appeals from a judgment of the Supreme Court (Mackey, J.), entered January 3, 2018 in Rensselaer County, upon a verdict rendered in favor of plaintiff.

Plaintiff, an attorney, leased two adjacent commercial properties (hereinafter the commercial property) located at 121 and 123 Fourth Street in the City of Troy, Rensselaer County to defendants, who he had represented on a variety of legal matters involving other properties and transactions. After defendant Elda Abate expressed an interest in purchasing, plaintiff agreed to sell her the commercial property. In August 1999, defendants executed a note to plaintiff in the amount of $ 160,000, which represented the purchase price, plus past due lease payments and legal fees. When defendants defaulted on the note, plaintiff commenced this action pursuant to CPLR 3213, seeking the balance due on the note plus interest. When this matter was previously before us, this Court affirmed Supreme Court's order finding that a question of fact existed as to whether there was an attorney-client relationship between plaintiff and defendants that caused defendants to rely on that fiduciary relationship and plaintiff's representations in executing the note ( 62 A.D.3d 1178, 879 N.Y.S.2d 255 [2009] ). After a trial, the jury found that plaintiff did not have a fiduciary duty to defendants and,

172 A.D.3d 1801

therefore, it rendered a verdict in plaintiff's favor. The court thereafter denied a postverdict motion by plaintiff seeking to have both the contract and statutory interest rate added to his award. Both parties appeal.¹

Contending that plaintiff had breached a fiduciary duty to them, defendants maintain that the jury's contrary verdict was against the weight of the evidence. Generally, an attorney-client "relationship arises only when one contacts an attorney in his [or her] capacity as such for the purpose of obtaining legal advice or services" ( Matter of Priest v. Hennessy, 51 N.Y.2d 62, 68–69, 431 N.Y.S.2d 511, 409 N.E.2d 983 [1980] ), and the fiduciary relationship between an attorney and his or her client arises once the former undertakes to perform a specific task for the latter (see Graubard Mollen Dannett & Horowitz v. Moskovitz, 86 N.Y.2d 112, 118, 629 N.Y.S.2d 1009, 653 N.E.2d 1179 [1995] ; Busino v. Meachem, 270 A.D.2d 606, 608, 704 N.Y.S.2d 690 [2000] ). The fiduciary relationship between an attorney and his or her client "is imbued with ultimate trust and confidence," including "safeguarding client property and honoring the client's interest over that of the attorney" ( Beltrone v. General Schuyler & Co., 252 A.D.2d 640, 641, 675 N.Y.S.2d 198 [1998] ; accord Elacqua v. Physicians' Reciprocal Insurers, 52 A.D.3d 886, 889, 860 N.Y.S.2d 229 [2008] ).

Plaintiff testified that he purchased the commercial property in 1981 and that, shortly thereafter, he became acquainted with defendants as neighboring business owners in Troy. Plaintiff represented the two in different matters over the years. He recalled that because Abate always expressed an interest in purchasing the commercial property, he approached her in 1996 when he was ready to sell. The two negotiated a price, but the sale was not completed and plaintiff...