It’s difficult to say which is the more perplexing problem in this case. Is it the loose procedure in which a client put down $ 1.1 million on a condo with few safeguards, or the manner in which the legal malpractice case is being handled? in Cheong v Lau 2012 NY Slip Op 30725(U) March 1, 2012 Supreme Court, Queens County Docket Number: 22266/09 Judge: Darrell L. Gavrin we see both.
The legal malpractice case handling first. Defaults, late cross-motions, what appears to be pro-se defendants, and missed deadlines are how this legal malpractice case begins.
Worse is how this real estate transaction took place. "On July 13, 2007, plaintiffs met with Tso, a sales agent, and Lee, the principal of Paramount, whereupon plaintiffs agreed to purchase a condo unit and a parking space in a building owned by Paramount for $628,000 with a $100,000 down payment. On that same date, plaintiffs and Lee signed a terms sheet outlining the terms of the purchase. On July 19, 2007, plaintiffs retained the Lau defendants to represent them in the purchase of the condo unit and parking space. On July 25, 2007, plaintiffs and Paramount executed a contract of sale for the condo unit and parking space, and plaintiffs issued to Paramount’s attorney a check for $100,000 as the down payment. The contract did not provide for a condominium offering plan approved by the New York State Attorney General’s Office. On July 27, 2007, the down payment was released to Paramount. On February 5, 2008, plaintiffs and Paramount executed a second purchase contract, which included an approved condominium
offering plan, and plaintiffs issued an additional $5,000 down payment. At that time, Jay Lau
told plaintiffs that the $100,000 down payment would be considered a loan to Paramount and
that Lee would personally guaranty the loan. Plaintiffs received a promissory note stating
that the $100,000 would be applied to the purchase price upon closing. It is undisputed that
Paramount never satisfied the promissory note and title to the condo unit has never been
transferred to plaintiffs. Meanwhile, in January 2008, Tso asked plaintiffs to lend Paramount
$1,000,000 for a period of six months to complete construction on the building. Plaintiffs
agreed to the loan and retained the Lau defendants to represent them in the transaction. Mr.
Lau drafted the loan documents, which he advised plaintiffs would create a mortgage lien on
the property. According to its terms, Lee also personally guaranteed the mortgage. On
February 8, 2008, plaintiffs executed the mortgage documents and wired $1,000,000 to
Golden Eagle Capitol Corporation, as requested by Lee. On February 10, 2009, the mortgage
was recorded. Paramount and Lee never made any payments on the mortgage. Soon
thereafter, plaintiffs received notice that Chinatrust Bank was seeking to foreclose on its
mortgage against the subject property. On August 14, 2009, plaintiffs commenced the within
action alleging causes of action for legal malpractice and fraud against the Lau defendants,
causes of action for fraud against Paramount, Lee, and Tso, and claims to recover on the
$100,000 promissory note and personal guaranty of the note against Paramount and Lee,
respectively. "
In this case, there has been a break-down of the orderly pleadings stage.
"The court will not entertain Tso’s untimely cross motion to dismiss the complaint and all cross claims asserted against him pursuant to CPLR § 3211 (a) (1) and/or CPLR § 3212. A cross motion for summary judgment pursuant to CPLR § 3212 made after the expiration of the statutory period or court-ordered deadline may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made on grounds nearly identical to that of the cross motion (see Grande v Peteroy, 39 AD3d 590 [2d Dept 2007]). Here, Tso’s cross motion for summary judgment was served 20 days after the court-ordered deadline of October 1, 2011. Tso has not offered any excuse for the delay in making the cross motion (see Thompson v Leben Home for Adults, 17 AD3d 347, 348 [2d Dept 2005]). Moreover, the issues presented by Tso’s cross motion and the separate motions for summary judgment by plaintiffs and the Lau defendants are not nearly identical. Tso’s cross motion seeks summary judgment dismissing plaintiffs’ complaint insofar as asserted against him, whereas plaintiffs’ motion only seeks summary judgment on their causes of action against the Lau defendants, Paramount, and Lee. In addition, while Tso’s cross motion seeks summary judgment dismissing the Lau defendants’ cross claim for contribution or common-law and/or contractual indemnification against him, the Lau defendants’ summary judgment motion seeks dismissal of plaintiffs’ complaint insofar as asserted against them and the cross claim by Paramount, Lee, and Tso for contribution against them. Under these circumstances, the cross motion is time-barred (see Podlaski v Long Is. Paneling Ctr. of Centereach, Inc., 58 AD3d 825, 826-827 [2009]; Bickelman v Herrill Bowling Corp., 49 AD3d 578 [2d Dept 2008]). Likewise, Tso’s cross motion to dismiss plaintiffs’ complaint and all cross claims asserted against him pursuant to CPLR § 3211 (a) (1) is untimely since it was not made within the time period during which defendants were required to serve an answer (CPLR
§ 3211 [e]; see Bennett v Hucke, 64 AD3d 529, 530 [2d Dept 2009]; see also Siegel, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:52)."