| Humbert v Allen |
| 2011 NY Slip Op 08125 [89 AD3d 804] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Christine O'Keeffe Humbert, Plaintiff, v Allison E. Allen etal., Defendants/Third-Party Plaintiffs-Respondents, and Luigi Rosabianca, Esq., Appellant.Rosabianca & Associates, PLLC, Third-Party Defendant-Appellant, et al., Third-PartyDefendants. |
—[*1] Moss & Kalish, PLLC, New York, N.Y. (James Schwartzman of counsel), fordefendants/third-party plaintiffs-respondents.
In an action to recover damages for breach of contract, the defendant Luigi Rosabianca andthe third-party defendant Rosabianca & Associates, PLLC, appeal from an order of the SupremeCourt, Nassau County (Brandveen, J.), entered June 22, 2010, which, inter alia, granted thatbranch of the cross motion of the defendants/third-party plaintiffs which was for summaryjudgment on the cross claim and the third-party cause of action alleging legal malpractice insofaras asserted against them, awarding the defendants/third-party plaintiffs the principal sum of$25,000 as partial damages, and directing a hearing to determine the amount of "litigationexpenses" incurred by the defendants/third-party plaintiffs as a result of their alleged legalmalpractice.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the cross motion of the defendants/third-party plaintiffs which was for summaryjudgment on the cross claim and the third-party cause of action alleging legal malpractice insofaras asserted against the defendant Luigi Rosabianca and the third-party defendant Rosabianca &Associates, PLLC, awarding the defendants/third-party plaintiffs the principal sum of $25,000 aspartial damages, and directing a hearing to determine the amount of "litigation expenses"incurred [*2]by the defendants/third-party plaintiffs as a result ofthe alleged legal malpractice of the defendant Luigi Rosabianca and the third-party defendantRosabianca & Associates, PLLC, and substituting therefor a provision denying that branch of thecross motion; as so modified, the order is affirmed, with one bill of costs payable to thedefendant Luigi Rosabianca and the third-party defendant Rosabianca & Associates, PLLC, bythe defendants/third-party plaintiffs, and, upon searching the record, summary judgment isawarded to the defendant Luigi Rosabianca and the third-party defendant Rosabianca &Associates, PLLC, dismissing the cross claim and the third-party cause of action alleging legalmalpractice insofar as asserted against them.
The defendants/third-party plaintiffs, Allison E. Allen and Robert T. Allen (hereinaftertogether the Allens), entered into a contract to purchase a condominium unit from the plaintiff fora total purchase price of $475,000. Upon signing the contract, the Allens deposited a downpayment in the sum of $47,500 into an escrow account managed by the Allens' lawyer, thedefendant Luigi Rosabianca, and his law firm, the third-party defendant Rosabianca &Associates, PLLC (hereinafter together the appellants). The contract of sale contained a mortgagecontingency clause that entitled the Allens to a refund of their down payment if they could notsecure a commitment for a mortgage loan in the amount of $427,500, after making a good faithand diligent attempt to obtain such a commitment. The Allens proceeded to apply for a mortgageloan in a far greater amount, intending to purchase another condominium unit in addition to theunit owned by the plaintiff. Although the Allens received a "counteroffer" commitment from abank for a loan in the amount of $846,000, they instructed the appellants to cancel the contract ofsale with the plaintiff in accordance with the mortgage contingency clause.
The plaintiff subsequently commenced this action against the Allens and Rosabianca,alleging breach of contract and seeking to receive and retain the down payment as liquidateddamages. In her complaint, the plaintiff alleged, inter alia, that the Allens had violated the termsof the mortgage contingency clause and forfeited their down payment by failing to make adiligent application for a mortgage loan in the amount of $427,500. The Allens asserted, interalia, a cross claim against Rosabianca and a third-party cause of action against Rosabianca &Associates, PLLC, alleging legal malpractice.
The plaintiff and the Allens ultimately entered into a settlement agreement pursuant to whicheach of them received a portion of the down payment. By stipulation, the plaintiff discontinuedher claims against the Allens and Rosabianca. The Allens, however, maintained theaforementioned cross claim and third-party cause of action against the appellants, alleging thatthey were negligent in failing to tender written notice of cancellation to the plaintiff inaccordance with the terms of the contract of sale, that this negligence was a proximate cause ofthe Allens' damages, and thus, that the appellants were liable for the portion of the down paymentthat the Allens forfeited to the plaintiff. In the order appealed from, the Supreme Court, inter alia,granted that branch of the Allens' cross motion which was for summary judgment on the crossclaim and the third-party cause of action alleging legal malpractice insofar as asserted against theappellants, awarding the Allens the principal sum of $25,000 as partial damages, and directing ahearing to determine the amount of "litigation expenses" incurred by the Allens as a result of theappellants' alleged legal malpractice. We modify.
To recover damages for legal malpractice, the Allens were required to demonstrate that their"attorney 'failed to exercise the ordinary reasonable skill and knowledge commonly [*3]possessed by a member of the legal profession' and that theattorney's breach of this duty proximately caused [them] to sustain actual and ascertainabledamages" (Rudolf v Shayne, Dachs,Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman,99 NY2d 295, 301 [2002] [internal quotation marks omitted]; see Bilin v Segal, Goodman & Goodman, LLP, 81 AD3d 680, 682[2011]). To establish causation, the Allens were required to show that they "would not haveincurred any damages, but for the lawyer's negligence" (Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018[2010] [internal quotation marks omitted]), and that they "incurred actual damages as a directresult of the attorney's actions or inaction" (Bauza v Livington, 40 AD3d 791, 793 [2007] [internal quotationmarks omitted]). " '[M]ere speculation about a loss resulting from an attorney's alleged omissionis insufficient to sustain a prima facie case of legal malpractice' " (Dempster v Liotti, 86 AD3d 169,177 [2011], quoting Siciliano vForchelli & Forchelli, 17 AD3d 343, 345 [2005]).
Here, the Allens did not meet their prima facie burden of establishing their entitlement tojudgment as a matter of law on the cross claim and the third-party cause of action alleging legalmalpractice insofar as asserted against the appellants. They failed to demonstrate that theappellants' alleged malpractice (the failure to tender written notice of cancellation of the contractof sale) was a proximate cause of their damages (see Bells v Foster, 83 AD3d 876, 877 [2011]; compare Logalbov Plishkin, Rubano & Baum, 163 AD2d 511 [1990]). The Allens did not establish, primafacie, that they would have been entitled to the return of their down payment, but for this allegedmalpractice (see Kluczka v Lecci,63 AD3d 796, 797 [2009]). As the record indicates, and the Allens do not dispute, theyapplied for a mortgage loan in an amount far greater than that which was specified under theexpress terms of the mortgage contingency clause, and they received a "counteroffer"commitment from a lender for a loan in an amount almost double that which they needed tosecure pursuant to the terms of the contract of sale. Under these circumstances, the Allens did nothave grounds to cancel the contract of sale pursuant to the terms of the mortgage contingencyclause (see Post v Mengoni, 198 AD2d 487 [1993]; Silva v Celella, 153 AD2d847, 848 [1989]). Thus, regardless of any malpractice on the part of the appellants in allegedlyfailing to tender written notice of cancellation, the Allens independently breached the contract ofsale and forfeited their down payment to the plaintiff as liquidated damages (see Post vMengoni, 198 AD2d 487 [1993]; Silva v Celella, 153 AD2d at 848).
Since the Allens failed to establish, prima facie, that the appellants' alleged malpractice was aproximate cause of their damages, the Supreme Court should have denied that branch of theAllens' cross motion which was for summary judgment on the cross claim and the third-partycause of action alleging legal malpractice insofar as asserted against the appellants, awarding theAllens the principal sum of $25,000 as partial damages, and directing a hearing to determine theamount of "litigation expenses" incurred by the Allens as a result of the appellants' alleged legalmalpractice. Further, under the circumstances of this case, we award summary judgment to theappellants dismissing the Allens' cross claim and third-party cause of action alleging legalmalpractice insofar as asserted against them pursuant to our authority to search the record andaward summary judgment to the nonmoving parties with respect to an issue that was the subjectof the motion before the Supreme Court (see Blair v O'Donnell, 85 AD3d 954, 956-957 [2011]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Rivera, J.P., Florio, Austin and Sgroi, JJ., concur.