| Zinnanti v 513 Woodward Ave. Realty, LLC |
| 2013 NY Slip Op 02244 [105 AD3d 736] |
| April 3, 2013 |
| Appellate Division, Second Department |
| Vita Zinnanti et al., Respondents, v 513Woodward Avenue Realty, LLC, et al., Defendants, and Agins Siegel Reiner & Bouklas,LLP, Appellant. |
—[*1] Mario Malerba, Kew Gardens, N.Y. (James Cullen of counsel), forrespondents.
In an action, inter alia, to recover damages for negligence and fraud, the defendantAgins, Siegel, Reiner & Bouklas, LLP, appeals from an order of the Supreme Court,Queens County (Butler, J.), entered February 1, 2011, which denied that branch of itsmotion which was for summary judgment dismissing the third and fourth causes ofaction.
Ordered that the order is reversed, on the law, with costs, and that branch of themotion of the defendant Agins, Siegel, Reiner & Bouklas, LLP, which was for summaryjudgment dismissing the third and fourth causes of action is granted.
In 2006, the plaintiffs purportedly conveyed, by deed, certain real property to thedefendant 513 Woodward Avenue Realty, LLC (hereinafter Woodward). Woodward, asborrower, obtained a loan secured by a mortgage on the property from the defendant 542A Realty, LLC (hereinafter A Realty). The defendant law firm, Agins, Siegel, Reiner, &Bouklas, LLP (hereinafter the law firm), represented A Realty at the closing on themortgage loan.
Thereafter, the plaintiffs commenced this action against the law firm, among others,to recover damages for, inter alia, negligence and fraud. As pertinent here, the complaintalleged that the plaintiffs never conveyed their property to Woodward, and were unawareof the closing on the mortgage loan. In addition, the complaint alleged that the law firmparticipated in the mortgage closing despite the fact that Woodward did not have title tothe subject property on the date of closing. The third cause of action alleged negligenceagainst the law firm, while the fourth cause of action alleged fraud against the law firm.In the order appealed from, the Supreme Court denied that branch of the law firm'smotion which was for summary judgment dismissing the third and fourth causes ofaction.
The law firm established, prima facie, its entitlement to judgment as a matter of lawdismissing the third and fourth causes of action. In this regard, the law firm submittedevidence demonstrating that it was not in privity with the plaintiffs with respect to thesubject transactions.[*2]"In New York, a third party,without privity, cannot maintain a claim against an attorney in professional negligence,'absent fraud, collusion, malicious acts or other special circumstances' " (Estate of Schneider vFinmann, 15 NY3d 306, 308-309 [2010], quoting Estate of Spivey vPulley, 138 AD2d 563, 564 [1988]; see Prudential Ins. Co. of Am. v Dewey,Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 382 [1992]; Breen v Law Off. of Bruce A.Barket, P.C., 52 AD3d 635 [2008]). Accordingly, the law firm established itsentitlement to judgment as a matter of law dismissing the negligence cause of action.Moreover, the law firm submitted evidence demonstrating that it made no materialmisrepresentations to the plaintiffs (see Lama Holding Co. v Smith Barney, 88NY2d 413, 421 [1996]), thus establishing its entitlement to judgment as a matter of lawdismissing the fraud cause of action. In opposition, the plaintiffs failed to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).Therefore, the Supreme Court should have granted that branch of the law firm's motionwhich was for summary judgment dismissing the third and fourth causes of action.
We do not reach the law firm's contention concerning that branch of its motionwhich was for, inter alia, an award of costs pursuant to 22 NYCRR 130-1.1, as thatbranch of the motion was not addressed by the Supreme Court in the order appealedfrom. Dillon, J.P., Angiolillo, Leventhal and Sgroi, JJ., concur.