Kreamer v. Town of Oxford

• Decision Date: 07 June 2012
• Citation: 946 N.Y.S.2d 283,2012 N.Y. Slip Op. 04445,96 A.D.3d 1128
• Parties: Michele KREAMER et al., Appellants, v. TOWN OF OXFORD et al., Defendants, and Roger Monaco, Respondent.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1128

946 N.Y.S.2d 283

2012 N.Y. Slip Op. 04445

Michele KREAMER et al., Appellants,

v. TOWN OF OXFORD et al., Defendants,andRoger Monaco, Respondent.

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

June 7, 2012.

Neroni Law Office, Delhi (Tatiana Neroni of counsel), for appellants.

Keidel, Weldon & Cunningham, Syracuse (Christopher B. Weldon of counsel), for respondent.

Before: LAHTINEN, J.P., SPAIN, MALONE JR., KAVANAGH and McCARTHY, JJ.

McCARTHY, J.

Appeal from an order of the Supreme Court (Dowd, J.), entered March 18, 2011 in Chenango County, which, among other things, granted defendant Roger Monaco's motion to dismiss the complaint against him.

Plaintiffs commenced this action against numerous parties, mainly alleging that the municipal defendants violated plaintiffs' rights by denying them a building permit and area variance for their property in the Town of Oxford, Chenango County. Defendant Roger Monaco (hereinafter defendant) was the attorney who represented plaintiffs at the closing when they purchased that property. Defendant moved to dismiss the complaint against him.¹ Plaintiffs cross-moved to find defendant in default and for summary judgment based on that default. Supreme Court granted defendant's motion and denied the cross motion. Plaintiffs appeal.

Plaintiffs failed to state a cause of action against defendant. The complaint does not list legal malpractice as a separate cause of action ( see CLPR 3014), and all of the allegations concerning defendant are contained in the “statement of facts” portion of the complaint rather than under a specified cause of action. Even accepting the allegations as true and liberally construing the complaint to be alleging legal malpractice against defendant, the allegations are insufficient to make out a prima facie case. An action for legal malpractice requires proof that the attorney failed to exercise the reasonable skill and knowledge ordinarily possessed by a member of the legal profession, that this negligence was the proximate cause of the client's loss or injury, and that the client sustained actual damages ( see M & R Ginsburg, LLC v. Segal, Goldman, Mazzotta & Siegel, P.C., 90 A.D.3d 1208, 1208–1209, 934 N.Y.S.2d 269 [2011] ). Plaintiffs allege that defendant knew or should have known of the Town's zoning ordinances that could affect plaintiffs' rights as landowners, but failed to advise them of those rights. They further allege that defendant's actions inflicted emotional distress and caused them to expend money to save their house. These allegations do not set out the standard of skill required of an attorney or state that defendant...