Client wants to open a business.  Client goes to attorney to make sure that the store she is building in NYC will meet all codes.  Attorney tells her no employee bathroom is necessary.  The City says it is necessary.  She loses the store as a result.  Legal Malpractice?

In Cavlak v Helbraun;  2013 NY Slip Op 32704(U);  October 25, 2013;  Supreme Court, New York County;  Docket Number: 103896/2012;  Judge: Richard F. Braun says that the legal malpractice claim remains, while all other causes of action are dismissed.

"This is an action sounding in negligence, legal malpractice, violation of Judiciary Law§ 487, breach of fiduciary duty, and breach of contract, all arising out of the review by defendant David
Helbraun (defendant) of plaintiffs lease for plaintiffs storefront take-out window bakery/ cafe and
giving of advice in relation thereto. Plaintiff contends that she was not properly advised by defendant of the need for an available employee bathroom under the New York City Health Code. After receiving a number of citations for New York City Health Code violations, including one for the lack of an available employee bathroom, plaintiff maintains that she was forced to end the operation of her business, which caused her to lose her investment in the business. Defendant contends that the complaint should be dismissed, pursuant to CPLR 3211 (a) (1) and (7), based on the documentary evidence that he submitted and because plaintiff has failed to state a cause of action.·"

"Plaintiff has stated a cause of action for legal malpractice sufficient to withstand a motion to dismiss, insofar as she alleges that she was not properly apprised of the implications of a lack of an employee bathroom for the premises, which ultimately caused her to lose her business and her investment therein. Plaintiff effectively pleads that she was erroneously advised that a bathroom for employees was not required. Defendant contends that under then NYCHC § 81.29 (a) (now modified in § 81.22 [a]) a bathroom for employee use need not be in the actual store, but that some facilities must be available for employee use. Even assuming that bathrooms in nearby
restaurants could serve that function, bathrooms in those restaurants were not available at the time
of the New York City Department of Health inspection because the restaurants were not open and
thus seemingly would not ordinarily be available during plaintiffs prime morning hours. Had
plaintiff not been advised that a bathroom for employees was not required, as alleged, she would not have faced this dilemma. While defendant asserts that the violation could have been challenged and cured, that would involve a determination on proximate cause beyond the face of the pleading (cf Bernardi v Spyratos, 79 AD3d 684, 688 [2nd Dept 2010] [where the determination on causation was on a motion for summary judgment]). Indeed, plaintiff maintains that she obtained documents showing that she was authorized to use the bathroom in the restaurant next door and presented them at a hearing, apparently to no avail.

"Failure to exhaust administrative remedies is not a defense to a legal malpractice claim, but rather generally bars a judicial challenge to an administrative action (see Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]). While a failure to exhaust administrative remedies could be a factor in determining whether an attorney’s negligence was a proximate cause of a plaintiffs damages (cf Catuzza v Rodriguez, 93 AD3d 1214, 1214-1215 [4th Dept 2012] [the defendant attorneys in a legal malpractice action failed to establish as a matter of law that the plaintiff employee’s complaint against the county would have been dismissed on the ground that he failed to exhaust his administrative remedies]), that too goes beyond the issue of the sufficiency of the pleading."