A Landlord-Tenant Case, Death and Legal Malpractice
The decision is somewhat short on facts, but we guess that this case arose froma settled landlord-tenant case in which tenant then died. His estate sued his former attorneys, and the case continues. Frankel v Vernon & Ginsburg, LLP 2012 NY Slip Op 08425 Decided on December 6, 2012 Appellate Division, First Department tells us that the AD often scrutinizes the "but for" portion of the case very closely.
"The IAS court properly declined to dismiss the legal malpractice cause of action. Defendants failed to sustain their burden on summary judgment of demonstrating that plaintiff would be unable to prove one of the essential elements of his claim (see Sabalza v Salgado, 85 AD3d 436 [1st Dept 2011]). On the contrary, the record demonstrated that plaintiff's decedent had viable causes of action for breach of the warranty of habitability and nuisance against defendants in the underlying action (see 61 W. 62 Owners Corp. v CGM EMP LLC, 77 AD3d 330 [1st Dept 2010], affd in part, mod in part 16 NY3d 822 ; Misra v Yedid, 37 AD3d 284, 285 [1st Dept 2007]). Furthermore, the record demonstrated that plaintiff's decedent might have recovered legal fees, which alone exceeded the amount of the settlement in this matter (Real Property Law § 234). "