Last fall we wrote about the Cove Cafe and the legal malpractice case that followed.  Attorney was sued when there was a falling out of the partners.  Now, on a motion to renew and reargue, before a different judge, there have been some changes.  Battaglia v Grillo  2012 NY Slip Op 31588(U)
June 6, 2012  Supreme Court, Nassau County  Docket Number: 014807-10  Judge: Vito M. DeStefano.

"In granting the underlying motions, Justice Warshawsky found that " (t)here is no
evidence that Spadaccini was bereft of the legal knowledge necessary to carry out the transaction.
Since ‘ legal malpractice ‘ requires a showing that the Defendant lacked the ordinary and
customary skill of a member of the legal community, Plaintiff Battaglia and third-party Plaintiff
Grillo have failed to allege a claim for legal malpractice" (Ex. "A" to Motion at p 6). The court
continued  "There is no evidence that Spadaccini made a legal error which resulted in the loss of
the investments of Battaglia, much less the non-contribution of Grillo. If the parties to this
enterprise have claims, they are against one another, not the attorney who undertook to provide
each of them with a 25% interest in the company holding title to the real estate they sought to
acquire to the extent that ostensibly three of the four joint ventures failed to contribute the
opening investments to which they committed, it is hardly the fault of their attorney that the
project has deteriorated into a fiscal disaster" (Ex. "A" to Motion at pp 6-7).

The court also dismissed the fraud allegations on the ground that "( n )ow here does the
Plaintiff Battaglia or third-party Plaintiff Grillo identify a specific representation which was
falsely made by Spadaccini, which he knew to be false, and which he made in order to induce
others to act, or that they acted upon such misrepresentation to their damage" (Ex. "A" to Motion
at p 6) .

"In the prior order, the court found that Battaglia and Grillo did not allege a claim for legal
malpractice because they failed to show that Spadaccini lacked the ordinary and customary skill
of a member of the legal community (Ex. "A" to Plaintiff s Motion at p 6). In a legal malpractice
action, the claimant must show that an attorney "failed to exercise the ordinary reasonable skill
and knowledge commonly possessed by a member of the legal profession" and that "the
attorney s breach of this professional duty caused the (claimant’ s) actual damages (McCoy
Feinman 99 NY2d 295, 301-02 (2002)). In order to survive a motion to dismiss, the complaint
must allege that but for counsel’ s malpractice, the claimant would have prevailed in the
underlying action or not have incurred any damages (Rudolf Shayne, Dachs, Stanisci, Corker
& Sauer 8 NY3d 438 (2007) (emphasis added)).
 

Here, the amended complaint and the third-party complaint each set forth a claim for
legal malpractice. According to the amended complaint, Spadaccini was retained to represent the
interests of the members of Macabagi, LLC ("LLC") in purchasing the property; Spadaccini advised Battaglia that the property was to be purchased by Battaglia, Bartolomeo Piraino
Massimo Grillo and Calogero Drago for approximately $275 000; Spadaccini would close the
transaction with each of the four members having a 25% percent interest in the LLC (Spadaccini
had drawn up the operating agreement to the LLC which provided that each of the four members
of the LLC would contribute a cash investment of $100 000.00 for a total working capital of
$400 000); Spadaccini failed to advise Battaglia that only Battaglia s $100 000 initial
contribution would be used to purchase the property, in violation of the understanding between
the four members of the LLC and in violation of Spadaccini’ s express representation to Battaglia;
Spadaccini closed title to the property, placing legal title to the property solely in the name of
Nancy Piraino,2 who was not a member of the LLC; and closed title with a $200 000.00 first
mortgage on the property (Ex. "D" to Affirmation in Opposition). Battaglia claims that he was
not advised that the purchase was being financed and, had he known, he would not have
purchased or made an investment in the property."