The attorney has died, and the legal malpractice case continues.  In Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C.  2012 NY Slip Op 32913(U)  December 5, 2012  Supreme Court, Suffolk County  Docket Number: 08-36154  Judge: Daniel Martin the result turns on what an expert may say in a summary judgment affidavit.

Plaintiff successfully contracts to buy a large number of gas stations.  Prior to the contract NYS had condemned three of the stations, and an award was won, but not yet paid.  Who would get the award, buyer or seller?

"This action was commenced to recover damages allegedly sustained by the plaintiffs as the result of the failure of the defendant Carl S. Levine, Esq., Deceased (Levine) to properly draft a contract clause ensuring that the plaintiffs would receive the payment of monies due from the State of New York regarding the condemnation of portions of gas stations which the plaintiff was in the process of purchasing.

At his deposition, Leon testified that he is the managing member of LPL, which owns and leases
gas stations. that he oversees the company’s litigation, and that he oversaw the action  commenced by LPL against Tartan to recover the unpaid condemnation awards. He stated that LPL was formed to obtain Tartan’s assets. that he believed that LPL signed a written retainer with Levine in 1997 or 1998 in which Levine agreed to represent LPL in the purchase of Tartan’s assets, and that he had not seen the retainer for many years. In August 1999, LPL acquired the assets of Tartan, including three gas stations which had been previously condemned by New York State (the State). He was led to believe that the Contract of Sale between I,PL and Tartan protected LPL‘s right to acquire the unpaid awards due from the State after the closing under the contract. He indicated that, during the contract negotiations, he spoke with Levine in the late winter/early spring of 1998 about the unpaid awards.

Having established their entitlement to summary judgment dismissing the complaint against
them, it is incumbent upon the plaintiffs to produce evidence in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, supra; Rebecchi v Whitmore, supra; O’Neill v Fishkill. supra). In opposition to the motion, the plaintiffs submit, among other things, an affidavit from an expert witness, copies of three briefs submitted in an appeal filed by Tartan in the action brought against it by LPL, and the deposition testimony of Levine. It is well settled that the statements of a decedent are not rendered inadmissible under the “Dead Man’s Statute” (see CPLR 45 19) when offered in opposition to a motion for summary judgment (see Phillips v Kantor & Co., 3 1 NY2d 307, 338 NYS2d 882 [ 972); Miller v Lu-Whitney, 61 AD3d 1043,  [3d Dept 2009); Lauriello v Gallotta, 59 AD3d 497, 873 NYS2d 690 [2d Dept 2009); Rosado v Kulsakdinun, 32 AD3d 282,, 820 NYS2d 239 [1st Dept 2006); McEvoy v Garcia.114 AD2d 401,494 NYS2d 125 [2d Dept 1985) Friedman v. Sills. 112 AD2d 343. 491 NYS2d 794 [2d Dept 1985).

The plaintiffs submit an expert opinion indicating that Levine clearly departed from the minimum standards of care, skill, knowledge and diligence commonly possessed by the legal profession
when he relied on section 1.O1 of the Contract of Sale to ensure that the unpaid awards would be
conveyed to LPL. In his affidavit dated June 11, 2012, Joseph N. Campolo, Esq. (Campolo) swears that section 1.01 was ambiguous as to whether the parties to the Contract of Sale intended for LPL to receive the condemnation awards, that the Blumberg form “purports to address only a condemnation between point of contract signature and closing …,” and that there should have been specific language regarding the pre-contract takings. He states that Levine’s failure left LPL vulnerable to Tartan’s arguments in the litigation between LPL and Tartan, resulting in the settlement of that action. Campolo concludes by stating “Accordingly, assuming that it was [Levine’s] intent to obtain those condemnation awards for his client (and both Mr. Levine’s and Mr. Leon [sic] depositions establish that it was) I do believe that Mr. Levine was negligent in relying on Section 1.01 and not insisting on specific language related to those awards.
It is well settled that the opinion testimony of an expert “must be based on facts in the record or
personally known to the witness” (see Hambsch v New York City Tr. Auth., 63 NY2d 723,480 NY S2d 195 [1984] citing Cassano v Hagstrom, 5 NY2d 643,646, 187 NYS2d 1 [1959]; Shi Pei Fang v Hang Sang Realty Cory., 38 AD3d 520, 835 NYS2d 194 [2d Dept 2007]; Santoni v Bertelsmann Property, Inc., 21 AD3d 712, 800 NYS2d 676 [1st Dept 2005]). An expert “may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion” (see Shi Pei Fang v Hang Sang Realty Corp, supra). Here, Campolo has failed to address the testimony of all of the witness, including Leon, which indicate that the issue of the condemnation awards was intentionally avoided by LPL and its counsel. Neither does Campolo address the impact on the negotiations between LPL and Tartan if specific language had been requested, and whether Levine’s alleged failure was the proximate cause of any damages suffered by LPL. A review of the plaintiffs’ submission in the light most favorable to them reveals that they have failed to raise an issue of fact requiring a trial in this action. Mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman v City of New York, 49 NY2d 557,427 NYS2d 595 [1980]; Perez v Grace Episcopal Church, 6 AD3d 596. 774 NYS2d 785 (2d Dept 2004]; Rebecchi v Whitmore. supra)."