| Kreamer v Town of Oxford |
| 2012 NY Slip Op 04445 [96 AD3d 1128] |
| June 7, 2012 |
| Appellate Division, Third Department |
| Michele Kreamer et al., Appellants, v Town of Oxford et al.,Defendants, and Roger Monaco, Respondent. |
—[*1] Keidel, Weldon & Cunningham, Syracuse (Christopher B. Weldon of counsel), forrespondent.
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'smotion to dismiss the complaint against him.
Plaintiffs commenced this action against numerous parties, mainly alleging that themunicipal defendants violated plaintiffs' rights by denying them a building permit and areavariance 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 theypurchased that property. Defendant moved to dismiss the complaint against him.[FN*]Plaintiffs [*2]cross-moved to find defendant in default and forsummary judgment based on that default. Supreme Court granted defendant's motion and deniedthe cross motion. Plaintiffs appeal.
Plaintiffs failed to state a cause of action against defendant. The complaint does not list legalmalpractice as a separate cause of action (see CLPR 3014), and all of the allegationsconcerning defendant are contained in the "statement of facts" portion of the complaint ratherthan under a specified cause of action. Even accepting the allegations as true and liberallyconstruing the complaint to be alleging legal malpractice against defendant, the allegations areinsufficient to make out a prima facie case. An action for legal malpractice requires proof that theattorney failed to exercise the reasonable skill and knowledge ordinarily possessed by a memberof 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 AD3d 1208, 1208-1209 [2011]). Plaintiffs allege that defendant knew or should haveknown of the Town's zoning ordinances that could affect plaintiffs' rights as landowners, butfailed to advise them of those rights. They further allege that defendant's actions inflictedemotional distress and caused them to expend money to save their house. These allegations donot set out the standard of skill required of an attorney or state that defendant's actions fell belowthat skill level (see Leder v Spiegel,9 NY3d 836, 837 [2007], cert denied 552 US 1257 [2008]; compare Canavan vSteenburg, 170 AD2d 858, 859 [1991]; see also Kolev and Collins, TheImportance of Due Diligence: Real Estate Transactions in a Complex Land Use World, 84NY St BJ 24 [Mar./Apr. 2012]). Thus, defendant was entitled to have the complaint against himdismissed.
Lahtinen, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote *: The remaining defendantsseparately moved to dismiss the complaint against them. Plaintiffs' appeal from the orderdeciding that motion is decided herewith (Kreamer v Town of Oxford, 96 AD3d 1130[2012] [decided herewith]).