Victor v. Goldman

• Decision Date: 15 May 1973
• Citation: 74 Misc.2d 685,344 N.Y.S.2d 672
• Parties: Leonora M. VICTOR, Plaintiff, v. Milton GOLDMAN, Individually, and as Executor of the Estate of Lena Aschkenazy, Defendant.
• Court: New York Supreme Court

Page 672

344 N.Y.S.2d 672

74 Misc.2d 685

Leonora M. VICTOR, Plaintiff, v. Milton GOLDMAN, Individually, and as Executor of the Estate of Lena Aschkenazy, Defendant.

Supreme Court, Rockland County.

May 15, 1973.

Kahn, Goldman & Rosen, White Plains, for plaintiff.

Kroll, Edelman, Elser & Wilson, New York City, for defendant.

MORRIE SLIFKIN, Justice.

In this action, defendant, an attorney, is sought to be cast in damages for allegedly failing to prepare a new last will and testament prior to the death of his client, the plaintiff's aunt. It is claimed that the decedent instructed the defendant to name the plaintiff as beneficiary of the right of first refusal to purchase the decedent's real estate for the sum of $2500., the present value of such property approximating $30,000.

A second cause of action seeks specific performance of this right by the defendant, as the executor of the decedent's will.

Defendant makes this motion for an order dismissing the complaint on the ground it fails to state a cause of action (CPLR 3211(a)(7)). The motion is granted.

There is no doubt that an attorney may be held to answer his client in damages for acts of misfeasance or nonfeasance, (7 C.J.S. Attorney and Client § 148; 7 American Jurisprudence 2d, § 167 et seq.; Degen v. Steinbrink, 202 App.Div. 477, 195 N.Y.S. 810, affd. 236 N.Y. 669, 142 N.E. 328) as this proposition may be seen to flow from ordinary principles of agency. (See, Blaustein, Liability of Attorney to Client in New York for Negligence, 19 Brooklyn Law Review 233 (1953); Notes; 37 Va.L.Rev. 429; 63 Col.L.Rev. 1292).

The more difficult question involves the attorney's liability to third parties. In general, it is established that an attorney owes no duty to third persons for acts committed Bona fides in the performance of his obligation to his client, (Hakala v. Van Schaick, 171 Misc. 418, 12 N.Y.S.2d 928) and this remains the rule even where negligence results in damage to the third party. (Dallas v. Fassnacht, Sup., 42 N.Y.S.2d 415, 419; Vernes v. Phillips, 266 N.Y. 298, 301, 194 N.E. 762, 763).

However, should it appear that the third party's damage was occasioned by the attorney's wrongful act, fraud or collusion, a different result must obtain (7 Am.Jur.2d, Attorneys at Law, § 196; Dallas v. Fassnacht, Supra; Kasen v. Morrell, 18 Misc.2d 158, 183 N.Y.S.2d 928; National Savings Bank v. Ward, 100 U.S. 195, 25 L.Ed. 621).

An examination of the potential theories on which liability for an attorney's simple negligence to third parties may be predicated must perforce include those of the third party beneficiary rule and the dispensation of the contractual privity requirement. A recent exposition indicates the development of a new trend in which attorneys may be held liable to third persons, under prescribed circumstances, for professional negligence (Annotation: 45 A.L.R.3d 1181, 1185, 1190 (§ 4a), 1191 (§ 4b)). Much of the spearhead in this direction comes to the law from well-considered cases in the State of California (Lucas v Hamm, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685, cert. den. 368 U.S. 987, 82 S.Ct. 603, 7 L.Ed.2d 525; Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, anno. 65 A.L.R.2d 1358; Haldane v. Freedman, 204 Cal.App.2d 475, 22 Cal.Rptr. 445; Heyer v. Flaig, 70 Cal.2d 223...