Wadsworth Condos LLC v. Gonski

• Decision Date: 13 February 2014
• Citation: 980 N.Y.S.2d 411,114 A.D.3d 487,2014 N.Y. Slip Op. 00930
• Parties: WADSWORTH CONDOS LLC, etc., Plaintiff–Respondent, v. DOLLINGER GONSKI & GROSSMAN, et al., Defendants–Appellants, EM Design Group, Inc., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 487
980 N.Y.S.2d 411
2014 N.Y. Slip Op. 00930

WADSWORTH CONDOS LLC, etc., Plaintiff–Respondent,
v.
DOLLINGER GONSKI & GROSSMAN, et al., Defendants–Appellants,
EM Design Group, Inc., et al., Defendants.

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

Feb. 13, 2014.

[980 N.Y.S.2d 412]

Furman Kornfeld & Brennan LLP, New York (Andrew R. Jones of counsel), for appellants.

Marc M. Coupey, New York, for respondent.

GONZALEZ, P.J., SWEENY, RICHTER, MANZANET–DANIELS, CLARK, JJ.

Order, Supreme Court, New York County (Louis B. York, J.), entered January 25, 2013, which, insofar as appealed from, denied the Dollinger defendants' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, with costs.

Defendants preserved the defense that plaintiff lacked the capacity to sue derivatively on behalf of its co-tenant-in-common by asserting the defense in their answer ( seeCPLR 3211[a][3], 3211[e]; see also Security Pac. Natl. Bank v. Evans, 31 A.D.3d 278, 820 N.Y.S.2d 2 [1st Dept.2006], appeal dismissed8 N.Y.3d 837, 830 N.Y.S.2d 8, 862 N.E.2d 86 [2007] ). However, plaintiff adequately alleged injuries to the common entity and the futility of a demand thereon.

Plaintiff's belatedly asserted grounds for alleging legal malpractice may be entertained since they involve no new factual allegations and no new theories of liability, and there is little or no basis on which defendants could claim surprise or prejudice ( see generally Alarcon v. UCAN White Plains Hous. Dev. Fund Corp., 100 A.D.3d 431, 954 N.Y.S.2d 13 [1st Dept.2012]; Valenti v. Camins, 95 A.D.3d 519, 943 N.Y.S.2d 504 [1st Dept.2012] ). The new claims raise issues of fact whether defendants were negligent in their legal representation of the tenants-in-common, and whether, but for the alleged negligent representation, the tenants-in-common would have been able to avoid the extensive delays in project construction that resulted in the loss of the construction loan, construction delay expenses, and increased attorneys' fees. The tenants-in-common retained defendants initially to advise them with respect to a stop work order issued by the Department of Transportation (DOT) that prohibited further demolition until an appropriate permit was secured from DOT or the Department of Buildings. Rather than trying to secure a permit or obtain a definitive statement of the ownership of the retaining wall sought to be demolished, defendants reviewed a survey and deed...