| Nelson v Kalathara |
| 2008 NY Slip Op 01313 [48 AD3d 528] |
| February 13, 2008 |
| Appellate Division, Second Department |
| Fred W. Nelson, Respondent, v Stanley Kalathara,Defendant, and Claude Simpson, Appellant. |
—[*1] Steven B. Cottler, Valhalla, N.Y., for respondent.
In an action to recover damages for legal malpractice, the defendant Claude Simpsonappeals, as limited by his brief, from so much of an order of the Supreme Court, WestchesterCounty (Nastasi, J.), dated August 29, 2006, as denied his motion pursuant to CPLR 3211 (a) (5)and (7) to dismiss the complaint insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Claude Simpson which was pursuant to CPLR 3211 (a) (7)to dismiss the complaint insofar as asserted against him is granted.
By order of the Supreme Court, Westchester County (Rosato, J.), entered January 13, 2004,the plaintiff, Fred W. Nelson was appointed successor guardian of the person and property ofBernadine Bell, an alleged incapacitated person, and his brother Vincent Nelson (hereinafterNelson) was removed by the court. In late 2002 Nelson, on behalf of Bell and represented by thedefendant Stanley Kalathara, entered into a contract to sell certain real property belonging toBell. The contract of sale was prepared by Kalathara as the seller's attorney. The defendantClaude Simpson (hereinafter the appellant), an attorney, was retained by the purchasers torepresent them in the purchase. Simpson also represented the purchasers' lender in thetransaction.
The parties appeared at the closing on the property on January 6, 2003 at which time titleclosed on the subject premises. Present at the closing were, among others, Nelson, Kalathara, the[*2]purchasers, and Simpson.
The plaintiff alleges that Nelson misappropriated, inter alia, funds that were received fromthe closing that belonged to Bell. The plaintiff commenced this action to recover damages forlegal malpractice against Simpson and Kalathara on May 8, 2006, more than three years and fourmonths after the January 6, 2003 closing.
To recover damages for legal malpractice, a plaintiff must prove, inter alia, the existence ofan attorney-client relationship (see Volpe v Canfield, 237 AD2d 282, 283 [1997]). "It iswell established that, with respect to attorney malpractice, absent fraud, collusion, malicious acts,or other special circumstances, an attorney is not liable to third parties, not in privity, for harmcaused by professional negligence" (Rovello v Klein, 304 AD2d 638 [2003], citingConti v Polizzotto, 243 AD2d 672 [1997]). Since an attorney-client relationship does notdepend on the existence of a formal retainer agreement or upon payment of a fee (see Hansenv Caffry, 280 AD2d 704 [2001]), a court must look to the words and actions of the parties toascertain the existence of such a relationship (see Tropp v Lumer, 23 AD3d 550 [2005]).
Here, the Supreme Court erred in denying that branch of Simpson's motion which waspursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against him. Theplaintiff's allegations against Simpson, that by virtue of his role in the real property sale, he knewor should have known that Bell would rely on his skills as an attorney to issue checks payable tothe guardian, and not to Nelson individually, do not fall within the narrow exception of fraud,collusion, malicious acts, or other special circumstances under which a cause of action alleginglegal malpractice may be asserted absent a showing of actual or near-privity (see AG Capital Funding Partners, L.P. vState St. Bank & Trust Co., 5 NY3d 582, 595 [2005]).
In light of our determination, we need not reach the appellant's remaining contention.Spolzino, J.P., Dillon, Angiolillo and Dickerson, JJ., concur.