Plaintiff Wins Underlying Case, Loses Legal Malpractice Case

So many of these cases start over a fee.  Here, relatives try to push relatives out of a house (we guess it was bequeathed to both), and clients end up spending about $ 50,000 to avoid being put in the street.  Then, it comes time to pay the attorneys.  This leads to an attorney fee case and a legal malpractice counterclaim.  In the end, clients lose all around.

Davis v Siskopoulos  2013 NY Slip Op 30353(U)  February 11, 2013  Supreme Court, New York County  Docket Number: 111965/04  Judge: Barbara Jaffe.

"In 2000, defendants hired plaintiff law firm to defend them in a partition action commenced by the brother of decedent Angelo Siskopoulos seeking to evict them from their residence. A referee held a hearing and issued a report finding that defendants had not ousted the brother from the residence, and awarded defendants certain damages, including reimbursement of half of the mortgage payments paid by them and for repairs and maintenance of the property. (Affidavit of Bonnie Reid Berkow, Esq., dated Feb. 13,2012 [Berkow Affid.], E)(h. GG). Between August 1,2000 and December 21,2003, plaintiff rendered legal services to them. As of January 31,2004, defendants had paid plaintiff $8,559.68 for its services, leaving a balance of$45,577.92. (Affirmation of Alexandra Siskopoulos, Esq., dated Feb. 12,2012 [Siskopoulos Aff.], Exh. A).
On or about August 16, 2004, plaintiff commenced the instant action against defendants, asserting causes of action for an account stated and quantum meruit.

Defendants' failure to plead the specific allegations in their affirmative defenses is not fatal here as plaintiff opposes them on the merits and defendants asked questions relating to them in discovery. (See Drago v Spadafora, 94 AD3d 1041 [2d Dept 2012] [no showing made that plaintiffs were taken by surprise or prejudiced by defendant's use of unpleaded affirmative defense in support of his motion for summary judgment]; Sullivan v Am. Airlines, Inc., 80 AD3d 600 [2d Dept 2011] [unpleaded defense may serve as basis for granting summary judgment in absence of surprise or prejudice to opposing party]; Joan Hansen & Co., Inc. v Everlast World's Boxing Headquarters Corp., 2 AD3d 266 [1 st Dept 2003], Iv denied 2 NY3d 702 [2004] [summary judgment may be granted on unpleaded defense where opponent of motion has not been surprised and fully opposed motion]).

Here, defendants have failed to establish, prima facie, that plaintiff is not an expert in the real estate field or had no experience dealing with partition actions as plaintiff s discovery response that it could not recall working on partition actions before 2000 does not constitute an admission that it had no experience working on such actions, and they cite nothing in Wagner's deposition testimony that is relevant to this claim. Thus, to the extent that plaintiff made certain representations to defendants, defendants have not shown that they were false misrepresentations. In any event, as defendants fail to submit an affidavit from someone with personal knowledge of the circumstances underlying their retention of plaintiff, they cannot establish that plaintiff made the representations to them on which they relied, and the printout of plaintiffs website is not probative. (See eg Dombroski v Samaritan Hasp., 47 AD3d 80 [3d Dept 2007] [general accusation of deception not based on personal knowledge insufficient to establish estoppel]; Cohen v Houseconnect Realty Corp., 289 AD2d 277 [2d Dept 2001] [complaint contained no allegations setting forth alleged misrepresentations, and no such allegations were contained in plaintiffs affidavit submitted on motion]; Urquhart v Philbor Motors, Inc., 9 AD3d 458 [2d Dept 2004] [affidavit submitted by defendant insufficient to establish prima facie entitlement to summary judgment as it was not by person with first-hand knowledge of alleged misrepresentations]; see also Nissan Motor Acceptance Corp. v Scialpi, 83 AD3d 1020 [2d Dept 2011] [conclusory and unsubstantiated allegations of fraud and misrepresentation insufficient]; cf Silber v Muschel, 190 AD2d 727 [2d Dept 1993] [defendant submitted fact-specific affidavit evincing first-hand knowledge of  misrepresentations made by plaintiff during parties' negotiations]; Slavin v Victor, 168 AD2d 399 [1 st Dept 1990] [in alleging fraud, party appropriately offered affidavit of person with first-hand  knowledge as to nature of misrepresentations). For the same reasons, defendants have not established their claim that plaintiff breached ethical rules by holding itself out as an expert in real estate.

 

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