| Hinsdale v Weiermiller |
| 2015 NY Slip Op 01854 [126 AD3d 1103] |
| March 5, 2015 |
| Appellate Division, Third Department |
[*1]
| Roger A. Hinsdale, Appellant, v Mark A. Weiermilleret al., Respondents. |
Edward E. Kopko, PC, Ithaca (Edward E. Kopko of counsel), for appellant.
Williamson, Clune & Stevens, Ithaca (John H. Hanrahan III of counsel), forrespondents.
Lahtinen, J.P. Appeal from an order of the Supreme Court (Mulvey, J.), entered July3, 2013 in Chemung County, which denied plaintiff's motion for summaryjudgment.
Defendant Mark A. Weiermiller (hereinafter defendant) represented plaintiff in a realestate transaction involving property where the deed had apparently been lost and neverrecorded by plaintiff's father when he originally acquired the property. Because of thetitle defect, the terms of the April 2007 purchase and sale agreement included a provisionthat the price of $325,000 would be reduced by $100,000 to $225,000 if plaintiff couldnot obtain a judgment quieting title within one year, i.e., by April 10, 2008, with timebeing of the essence. According to defendant, he encountered several significant andunanticipated difficulties in securing the judgment, which was not obtained until May 6,2008. The buyer nonetheless agreed to pay part of the $100,000 reduction amountauthorized by the agreement, resulting in plaintiff allegedly receiving $74,963 less than ifa judgment had been obtained within one year. Plaintiff commenced this legalmalpractice action against defendant and his law firm for the $74,963 loss he hadsustained. Supreme Court denied plaintiff's motion for summary judgment. Plaintiffappeals.
We affirm. "In an action to recover damages for legal malpractice, a plaintiff mustdemonstrate that the attorney 'failed to exercise the ordinary reasonable skill andknowledge commonly possessed by a member of the legal profession' and that theattorney's breach of this duty proximately caused plaintiff to sustain actual andascertainable damages" (Rudolfv Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007],quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]). Here, defendant stated inhis affidavit that, when plaintiff asked him before [*2]signing the agreement whether he "could be 90% sure" thattitle could be quieted within one year, he responded that he "could not give [plaintiff] anypercentage of certainty but that in [his] judgment [he] thought [he] would be able to get itdone in that time." However, he thereafter allegedly encountered many unexpecteddifficulties in attempting to gather information necessary for the action. He explainedthat the person who had transferred the property to plaintiff's father had died many yearsearlier, leaving numerous heirs scattered throughout the country. He eventually had tohire a private investigator to assist in locating heirs and, once located, some wereuncooperative. Defendant's time records substantiated work in every month, sometimesmany hours, as he attempted to gather necessary information and meet the deadline.Since he submitted proof of ongoing efforts that were met with considerable problems,this case is different from the situation where, for example, an attorney simply fails to actin a timely fashion believing a longer statute of limitations controls (see e.g. Bergin v Grace, 39AD3d 1017, 1018 [2007]). Viewing the evidence in a light most favorable todefendant (see M & RGinsburg, LLC v Segal, Goldman, Mazzotta & Siegel, P.C., 90 AD3d1208, 1210-1211 [2011]) and accepting for purposes of this motion his proofregarding the caution he gave at the outset, his efforts and the unanticipated difficulties,the issue of whether he exercised reasonable skill in light of all the circumstances cannotbe determined as a matter of law.
Garry, Rose and Devine, JJ., concur. Ordered that the order is affirmed, withcosts.