A Condo, A Tennancy in Common and a Legal Malpractice Case
Wadsworth Condos LLC sought to develop a condominium building, and took on others as kind-of partners, but really as tenants in common. What developed thereafter led to problems with municipal entities, a lot of money spent and a legal malpractice case, Wadsworth Condos LLC v Dollinger Gonski & Grossman 2013 NY Slip Op 30149(U) January 22, 2013 Sup Ct, New York County Docket Number: 600899/2009 Judge: Louis B. York discusses both legal malpractice and associated professional negligence.
"Summary judgment is a drastic remedy which is granted only when the party seeking summary judgment has established that there are no triable issues of fact. Andre v Pomeroy, 35 NY2d 361, 364 (1974). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1 st Dept 2006). "In considering a summary judgment motion, evidence should be analyzed in the light most favorable to the party opposing the motion." Martin v Briggs, 235 AD2d 192, 196 (1st Dept 1997). "On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact.'' S .I. Capelin Assocs., Inc.. v Globe Mfg.. Corp., 34 NY2d 338, 341 (1974); see Psihogios v Stavropolis, 269 AD2d 295,296 (1st Dept 2000) (holding that issues of credibility should be left for resolution by the trier of fact). Here, there is a clear dispute raised by the testimony of Joe Bobker and Dollinger. While Dollinger slates that the litigation against Fischer was authorized, Joe Bobker disagrees, and states that this litigation was not authorized, and that Dollinger was specifically told not to commence the litigation against Fischer.
There also remains questions of fact as to whether Dollinger's work for 43 Park
conflicted with the interests of the tenancy in common and the management agreement, and
whether Dollinger did or did not contribute to delays in the litigation which resulted in damages.
Therefore, because here are issues regrading the credibility of the witnesses, as well as issues of
fact regarding Dollinger's work, Dollinger and the Dollinger law firm's motion for summary
.judgment must be denied."