| Blanco v Polanco |
| 2014 NY Slip Op 02735 [116 AD3d 892] |
| April 23, 2014 |
| Appellate Division, Second Department |
| Karyll Blanco et al., Respondents, v Jose Polanco,Appellant, et al., Defendants. |
—[*1] Law Offices of Alana Barran, P.C., New York, N.Y., for respondents.
In an action, inter alia, to recover damages for legal malpractice, the defendant JosePolanco appeals from an order of the Supreme Court, Queens County (Lane, J.), datedMay 25, 2012, which denied his motion for summary judgment dismissing the complaintinsofar as asserted against him.
Ordered that the order is modified, on the law, (1) by deleting the provision thereofdenying that branch of the appellant's motion which was for summary judgmentdismissing so much of the third cause of action as alleged negligence and breach offiduciary duty insofar as asserted against him, and substituting therefor a provisiongranting that branch of the motion, (2) by deleting the provision thereof denying thatbranch of the appellant's motion which was for summary judgment dismissing the fifthcause of action, which alleged unjust enrichment, insofar as asserted against him, andsubstituting therefor a provision granting that branch of the motion, and (3) by deletingthe provision thereof denying that branch of the appellant's motion which was forsummary judgment dismissing so much of the eighth cause of action as alleged negligentmisrepresentation insofar as asserted against him, and substituting therefor a provisiongranting that branch of the motion; as so modified, the order is affirmed, without costs ordisbursements.
In September 2008, the plaintiffs, Karyll Blanco and Suamy Blanco, Jr. (hereinaftertogether the buyers), purchased a two-family home from the defendant Your First Home,LLC (hereinafter the seller). At the closing, the seller agreed to make certain repairs setforth on a punch list within 10 business days. Shortly after the closing, the buyers tookoccupancy of the premises.
According to the buyers, the seller never completed the punch list. Further, accordingto the buyers, after they moved into the premises, they discovered mold in various areasand found that water accumulated in the basement whenever it rained. Additionally, thebuyers allege that when they tried to rent the apartment on the second floor of the house,they were informed that they could not do so because the house did not have a certificateof occupancy (hereinafter CO), and later learned that there were numerous "outstandingrequirements" that needed to be satisfied before one could be obtained.
The buyers commenced this action against, among others, the seller and the attorney[*2]who represented the buyers in the transaction, thedefendant Jose Polanco (hereinafter the appellant), alleging that they, and the otherdefendants in the action, colluded to defraud them in connection with the purchase of thepremises by, inter alia, dissuading them from obtaining an inspection, representing thatany repairs and construction required on the premises would be performed and paid forby the seller before or immediately after the closing, misrepresenting the condition of thepremises, and misrepresenting that the apartment on the second floor could be rentedimmediately upon closing and that the premises had a CO. The buyers sought to recoverdamages from the appellant for, inter alia, legal malpractice, fraud, breach of fiduciaryduty, negligence, unjust enrichment, and conspiracy to commit fraud.
The appellant moved for summary judgment dismissing the complaint insofar asasserted against him. The Supreme Court denied the motion.
The Supreme Court properly denied that branch of the appellant's motion which wasfor summary judgment dismissing so much of the third cause of action as sought torecover damages for legal malpractice. "In an action to recover damages for legalmalpractice, a plaintiff must demonstrate that the attorney 'failed to exercise the ordinaryreasonable skill and knowledge commonly possessed by a member of the legalprofession' and that the attorney's breach of this duty proximately caused plaintiff tosustain actual and ascertainable damages. To establish causation, a plaintiff must showthat he or she would have prevailed in the underlying action or would not have incurredany damages, but for the lawyer's negligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]). "'To succeed on a motion for summary judgment, the defendant in a legal malpracticeaction must present evidence in admissible form establishing that the plaintiff is unableto prove at least one of these essential elements' " (Lever v Roesch, 101 AD3d 954, 955 [2012], quotingVerdi v Jacoby & Meyers, LLP, 92 AD3d 771, 772 [2012]; see Valley Ventures, LLC vJoseph J. Haspel, PLLC, 102 AD3d 955, 956 [2013]). "Once a defendant makesthis prima facie showing, the burden shifts to the plaintiff to raise an issue of factrequiring a trial" (Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d at956; see Duque v Perez, 95AD3d 937, 939 [2012]; Dempster v Liotti, 86 AD3d 169, 178-181 [2011]).
The appellant established his prima facie entitlement to judgment as a matter of lawdismissing so much of the third cause of action as sought to recover damages for legalmalpractice. However, in opposition to the appellant's prima facie showing, the buyersraised a triable issue of fact. The buyers submitted evidence that the appellant had hisnonattorney assistant pose as him and counsel the buyers throughout the transaction. Thebuyers also supplied proof that the appellant hastened them to sign the contract of salewithout reading it and failed to advise them that by signing the contract, they wereagreeing to purchase the premises "as is" and waiving their opportunity to conduct aninspection. The buyers also presented proof that, at the same time, the appellant reassuredthem that the seller would make needed repairs and advised them that they should trustthe seller's opinion that a professional inspection was not necessary. Additionally, thebuyers presented proof that the appellant failed to ask the seller to fulfill its obligationunder the contract of sale to provide a CO or "a letter from the building department. . . to the effect that" no CO is required. Based on the foregoing, the buyersraised triable issues of fact as to whether the appellant failed to exercise the ordinaryreasonable skill and knowledge commonly possessed by a member of the legalprofession in his advice and representation of them in the underlying transaction.Moreover, contrary to the appellant's contention, the buyers also raised a triable issue offact as to whether these actions were a proximate cause of their alleged damages (see Barnett v Schwartz, 47AD3d 197, 203-207 [2007]).
The Supreme Court also properly denied those branches of the appellant's motionwhich were for summary judgment dismissing the causes of action sounding in fraudinsofar as asserted against him. "To recover damages for fraudulent misrepresentation, aplaintiff must prove (1) a misrepresentation or an omission of material fact which wasfalse and known to be false by the defendant, (2) the misrepresentation was made for thepurpose of inducing the plaintiff to rely upon it, (3) justifiable reliance of the plaintiff onthe misrepresentation or material omission, and (4) injury" (Bernardi v Spyratos, 79 AD3d684, 687 [2010]; see Shao v 39 Coll. Point Corp., 309 AD2d 850, 851[2003]). Here, the buyers posited in their third, fourth, and eighth causes of action thatthe appellant committed fraud by, among other things, misrepresenting that the premiseshad a CO and thus, the [*3]apartment on the second floorof the premises could be rented immediately after the closing. In support of his motionfor summary judgment, the appellant submitted evidence demonstrating that he did notmake these misrepresentations. He also submitted a title report indicating that thestructure on the premises was erected before the enforcement of CO regulations.Additionally, he argued that the buyers could not prove that these allegedmisrepresentations persuaded them to purchase the premises inasmuch as they testified attheir examinations before trial that they intended for a relative to live in the apartmentand it was not until the relative moved out several months after the closing that theyattempted to rent the apartment to a tenant.
In response, the buyers raised triable issues of fact by submitting their own affidavits,wherein they stated that the appellant made the above-mentioned misrepresentations.Further, the buyers submitted a report from the New York City Department of Buildingsindicating that subsequent alterations may have been made to the premises, triggering theneed for a CO and that various "outstanding requirements" needed to be satisfied beforea CO could be obtained. Moreover, the buyers presented evidence that while theyintended for their relative to live in the apartment, the relative paid rent and theypurchased the premises relying on the rental income from the apartment to pay theirmortgage.
The Supreme Court also properly denied that branch of the appellant's motion whichwas for summary judgment dismissing the sixth cause of action, which allegedconspiracy to commit fraud. "New York does not recognize civil conspiracy to commit atort . . . as an independent cause of action" (Dickinson v Igoni, 76 AD3d943, 945 [2010]; see Alexander & Alexander of N.Y. v Fritzen, 68 NY2d968, 969 [1986]; Brackett v Griswold, 112 NY 454, 466-467 [1889]). However,"a plaintiff may plead the existence of a conspiracy in order to connect the actions of theindividual defendants with an actionable, underlying tort and establish that those actionswere part of a common scheme" (Litras v Litras, 254 AD2d 395, 396 [1998];see Alexander & Alexander of N.Y. v Fritzen, 68 NY2d at 969; Brackett vGriswold, 112 NY at 466-467; Romano v Romano, 2 AD3d 430, 431-432 [2003]). "Theallegation of conspiracy carries no greater burden, but also no less, than to assertadequately common action for a common purpose by common agreement orunderstanding among a group, from which common responsibility derives. Therefore,under New York law, [i]n order to properly plead a cause of action to recover damagesfor civil conspiracy, the plaintiff must allege a cognizable tort, coupled with anagreement between the conspirators regarding the tort, and an overt action in furtheranceof the agreement. A bare conclusory allegation of conspiracy is usually held insufficient"(Faulkner v City ofYonkers, 105 AD3d 899, 900-901 [2013] [internal quotation marks andcitations omitted]).
In opposition to the appellant's prima facie showing, the buyers submitted evidenceshowing that the appellant had a relationship with the seller, pursuant to which hereceived over 100 referrals from the seller. Additionally, the buyers submitted evidencethat when they were in the seller's office, they were introduced to a nonattorney imposterposing as the appellant who told them that he was the appellant. The buyers alsosubmitted evidence that while in the seller's office, one of the seller's employees toldthem that they did not need to get an inspection. The buyers also submitted evidence thatthe imposter told them to heed the seller's opinion in this regard and advised them to signa contract of sale without obtaining an inspection. When viewed as a whole, it may beinferred from this evidence that the appellant and the seller may have colluded to defraudthe buyers in connection with the purchase of the premises.
Finally, we agree with the appellant's contention that the Supreme Court should havegranted those branches of his motion which were for summary judgment dismissing somuch of the third cause of action as alleged negligence and breach of fiduciary dutyinsofar as asserted against him, the fifth cause of action, which alleged unjustenrichment, insofar as asserted against him, and so much of the eighth cause of action asalleged negligent misrepresentation insofar as asserted against him. These claims werepredicated on the same factual allegations as so much of the third cause of action asalleged legal malpractice, and the complaint did not allege damages distinct from thedamages that were allegedly caused by legal malpractice (see Palmieri v Biggiani, 108AD3d 604, 609 [2013];Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813-814 [2013];Tsafatinos v Lee DavidAuerbach, P.C., 80 AD3d 749, 750 [2011]; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d849, 850 [2009]; Sitar vSitar, 50 AD3d 667, 670 [2008]; Town of Wallkill v Rosenstein, 40 AD3d 972, 974 [2007]).Mastro, J.P., Balkin, Miller and LaSalle, JJ., concur.