The first thing that should be said is that this is not a legal malpractice case; it is, however, a breach of fiduciary duty case.  A agrees with Plaintiff that plaintiff will lend her name to two real estate transactions to purchase one family homes, and A will rent them out, collect rent, and pay the mortgages.  All proceeds, except A does not pay the mortgages, which are in P’s name. The inevitable then happens.  Are the two attorneys involved in the closings liable to P?

In Malysz v Adlerstein ;2011 NY Slip Op 52111(U) ; Decided on November 14, 2011 ; Supreme Court, Nassau County ; Marber, J.  they are not.  "Accordingly, the Plaintiff is required to establish that the Attorney Defendants herein failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the Attorney Defendants’ breach of this duty proximately caused the Plaintiff to sustain actual and ascertainable damages (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Bilin v. Segal, Goodman & Goodman, LLP, 81 AD3d 680 [2d Dept. 2011]). "This requires a showing that [*5]but for the [Attorney Defendants’] negligence … [the plaintiff] would have prevailed in the underlying action" (Walker v. Glotzer, 79 AD3d 737 [2d Dept. 2010]). A failure in any one element results in a dismissal of the claim (Albanese v. Hametz, 4 AD3d 379, 381 [2d Dept. 2004]). Furthermore, unless the ordinary experience of the finder of fact provides a sufficient basis for judging the adequacy of the professional service, or the attorney’s conduct falls below any standard of due care, expert testimony is also necessary to establish that the attorney breached a standard of professional care and skill (Demetriou v. Connexion I Real Estate Servs., Inc., 24 Misc 3d 127[A], [App. Term, 2nd, 11th & 13th Jud. Dists. 2009]).

In addition, in asserting a claim for a breach of a fiduciary duty, a plaintiff is obligated to set forth "the circumstances constituting the wrong…in detail" (CPLR § 3016 [b]; Daly v. Kochanowicz, 67 AD3d 78 [2d Dept. 2009]).

Initially, it is noted that inasmuch as the Plaintiff has admitted that the Attorney Defendants’ sole role in the transaction was to act as her closing attorney and to assist her in acquiring title to both properties, this Court finds that this transaction was a garden variety real estate transaction that does not require the Attorney Defendants on the instant motions to furnish expert affidavits to establish that they did not breach any standard of professional care (Darby & Darby v. VSI Intl., 95 NY2d 308, 312 [2000]).

Furthermore, the evidence indicates that the Attorney Defendants did not proximately cause the Plaintiff to suffer any damages. The Plaintiff entered into the transaction knowing that she could not afford the mortgages and that she was not going to make the mortgage payments. While this Court is not convinced that the Attorney Defendants were not aware of the relationship between Adlerstein and the Plaintiff (because Adlerstein was the one who retained the Attorney Defendants on the Plaintiff’s behalf in the first place), the evidence nonetheless confirms that the Plaintiff did not discuss with the Attorney Defendants the side agreement that she had with Adlerstein. Moreover, even assuming that the Attorney Defendants knew or should have known of the relationship between Adlerstein and the Plaintiff, there is no evidence on this record that the Attorney Defendants were aware (or should have been aware) that the Plaintiff was fraudulently executing the mortgage documents.

While both Attorney Defendants acted as the Plaintiff’s counsel at their respective closings which necessarily created a fiduciary relationship, as stated above, there is no evidence that either attorney breached that duty in connection with the respective transactions, and furthermore, that said breach was the "but for" cause of any damages. In light of the foregoing, this Court finds that the Defendants have established their prima facie entitlement to judgment as a matter of law. "