To what extent did defendant attorneys participate in the negotiation and advice given to a doctor who had a condo along with a professional suite, and then rented the suite?  Was co-defendant the attorney who gave all the advice and defendant merely one who attended the closing?

In Gershkovich v Miller, Rosado & Algios, LLP   2013 NY Slip Op 50050(U) [38 Misc 3d 1211]  Decided on January 9, 2013  Supreme Court, Kings County  Schmidt, J. we see such a question.  More than that, we see the folly of an early motion for summary judgment, made before plaintiff testified.

"In support of its motion for summary judgment, Miller had submitted the affidavit of Christopher Rosado. In his affidavit (see Zamurs aff., Ex. B) therein, Mr. Rosado stated that he [*2]was retained by co-defendant, Arthur Welsher, solely to represent the plaintiff at the closing of the purchase of the units. All other aspects of the purchase were performed by the co-defendant. Mr. Rosado did not negotiate, or participate in any way in the negotiation of the contract of sale of the subject units. He did not review any documents with plaintiffs prior to the date of the closing. Plaintiffs did not seek his advice concerning the leasing of the units and Mr. Rosado did not represent them or prepare any documents concerning the leasing of the units.

In opposition to Miller’s motion, plaintiffs submitted the affidavit of Tibor

Gershkovich, a practicing medical doctor, in which he stated that Miller (through Rosado) advised him and his wife that "the commercial units were merely an appendage to the plaintiffs condominium, had zero percentage of the common elements, paid no condominium dues or assessments, and were not bound by any of the restrictions imposed upon the residential unit owners." See affirmation of Roman Popik dated September 5, 2012 (Popik aff.), Ex. B, ¶ 29. Dr. Gershkovich also stated in his affidavit that, following the advice of Miller, he did not submit prior notice to the Board of Managers concerning the entering into the leases for the subject units. Id., ¶ 20.

This court, in denying Miller’s motion for summary judgment, found that Mr. Rosado’s affidavit was sufficient to make a prima facie showing that Miller did not negligently advise the plaintiffs. However, the court found that the affidavit of Dr. Gershkovich raised a question of fact as to whether Mr. Rosado advised the plaintiffs that the commercial units were not bound by any of the restrictions imposed upon the residential unit owners.

Subsequently, on January 25, 2012 and March 28, 2012, the deposition of plaintiff Tibor Gershkovich was held. See Zamurs aff., Ex. C (transcript).

Miller now moves to renew its summary judgment motion, arguing that the testimony of plaintiffs at their depositions contradict the affidavit relied on by plaintiffs to defeat Miller’s motion for summary judgment and also provide evidence which clearly demonstrates that plaintiffs cannot establish the requisite elements of legal malpractice against Miller.

A motion for leave to renew is addressed to the sound discretion of the court." Matheus v Weiss, 20 AD3d 454, 454-455 (2d Dept 2005). Pursuant to CPLR 2221, a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e] [2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion." CPLR 2221(e) (3).

In the matter at bar, the court finds that Miller has established reasonable justification for his initial failure to submit the new facts in that the evidence revealed by the testimony of plaintiff Dr. Tibor Gershkovich was not known at the time of the making of the original motion for summary judgment. Therefore, the court grants Miller’s motion to renew its prior summary judgment motion.

Upon renewal of Miller’s motion for summary judgment, the court further finds that Miller has established entitlement to judgment dismissing plaintiffs’ complaint.

At his deposition, Dr. Gershkovich testified that the contract of sale for the subject units was negotiated solely by Mr. Welsher. Tr. at 31. According to plaintiff, Mr. Welsher told him that the units could be rented out like a commercial unit. Id. Plaintiff did not speak to anyone other than Mr. Welsher prior to the signing of the contract of sale. Id. at 48.

At the closing, plaintiffs were represented by Mr. Rosado. Id. at 59. According to Dr. [*3]

Gershkovich, he spoke to Mr. Rosado one week prior to the closing. Id. at 60. During the conversation, he asked Mr. Rosado if he reviewed all of the documents needed for closing on the units and whether there would be any problems during the closing. Id. Significantly, however, Dr. Gershkovich acknowledged that he did not mention any particular problems that he may have had in mind. Id. "