Central Parking Sys. of N.Y., Inc. v David Rozenholc  & Assoc.  2015 NY Slip Op   0926(U)  June 3, 2015  Supreme Court, New York County  Docket Number: 155526/13  Judge: Shlomo S. Hagler is a quintessential Manhattan story.  While one does not think of driving and parking as a natural occupation of the Manhattan fauna, in this case there is lots and lots of money involved.  A parking lot on West 28th Street  generated a lot of income, with which traveled a lot of litigation.

“This action pertains to a Jot located at 140 West 28th Street in Manhattan (“Premises”). Non-party 140 West 28th Street Associates, LLC (“Former Landlord”), was the owner of Premises. On March 16, 2007, Former Landlord executed a lease with non-party 140 West Associates, LLC (“Former Tenant”) (see Abbott Affidavit, sworn to on November 14, 2013 [“Abbott Aff.”], Exhibit “A” [“Lease Agreement”]).

In 2010, Former Tenant allegedly stopped making monthly rent payments to Former Landlord. In September 2010, Former Landlord commenced a holdover proceeding (“Holdover Proceeding”) against Former Tenant in the Civil Court, County of New York (Index No. L&T 82056/10) (see Shrewsberry Affirmation, dated September 13, 2013 [“Shrewsberry Aff.”], Exhibit “B” [Verified Holdover Petition]). The Verified Holdover Petition named Former Tenant as respondent and plaintiff as respondent-undertenant (see id.). In that proceeding, 2 [* 2] Former Landlord sought: (l) a judgment of eviction, awarding Former Landlord possession of Premises; (2) a judgment against Former Tenant for use and occupancy of not less than $50,000 a month from April 24, 20101 until the date of the judgment; and (3) an award oflegal fees (id.). Plaintiff and Former Tenant retained Rozenholc & Associates to represent them in the Holdover Proceeding (Complaint, ‘l]’l] 22-23). Apparently, Pritchard, Horowitz, and Rozenholc of Rozenholc & Associates were assigned to that case (id., ‘I] 26), and Roberts & Roberts worked with Rozenholc & Associates as co-counsel. Rozenholc & Associates’interposed an answer on behalfofplaintiffand Former Tenant (id., ‘1]’1] 26-27; see also Abbott Aff., Exhibit “E”).

On September 28, 2011, Former Tenant unilaterally assigned to non-party West 28th Street Ground Lease Corp. (“New Tenant”) all of Former Tenant’s “right, title and interest in and to that certain Agreement of Lease dated May 16, 2007” between Former Landlord and Former Tenant (Shrewsberry Aff., Exhibit “I”). Former Tenant also unilaterally assigned in writing to New Tenant “all of its rights, title and interest in” the Holdover Proceeding and authorized New Tenant “to proceed with the defense of such suit … and to execute all papers necessary for the continuation of said suit” (id., Exhibit “H”). Former Tenant also agreed “to fully cooperate with [New Tenant] in arranging for a substitution of counsel and, at [New Tenant’s] election, to substitution of [it] in and for [Former Tenant] in” the Holdover Proceeding (id.).

Plaintiff alleges that Kriss & Feuerstein: (I) advised it to execute the Stipulation even though plaintiff “had no obligation to pay rent or use and occupancy” (Complaint, ‘1[ 45); (2) “did not advise plaintiff that signing such a stipulation would potentially expose [it] to a claim for use and occupancy in the amount of$82,000 per month” (id., ‘1f 46); (3) informed plaintiff”that in signing the stipulation, the matter would be resolved” (id., ‘1[.48); and (4) did not advise the court that, from April 2010 to October 1, 2011, plaintiff made all requisite monthly payments to Former Tenant for a total of$525,812.40 (id., iii! 49-50). In November 2011, Former Landlord entered into a contract With non-party West 28th Street Land Owner LLC (“New Landlord”) for sale of the Premises (see Kartez Affirmation, dated November 22, 2013, Exhibit “F”). On February 2, 2012, Former Landlord executed a deed granting ownership of the Premises to New Landlord (id.). Kriss & Feuerstein represented New Landlord in this transaction (id.). On February 3, 2012, Kriss & Feuerstein allegedly sent a letter, signed by Kriss, to plaintiff, stating that Kriss & Feuerstein was counsel to New Landlord, ahd that New Landlord became the owner of Premises (see Kriss Affirmation, dated April 24, 2014, iii! 3-4; Exhibit “A”).

Plaintiff also maintains that there was a conflict of interest because the Rozenholc Defendants represented both Former Tenant and plaintiff. However, “[a] conflict of interest, even ifa violation of the Code of Professional Responsibility, does not by itself support a legal malpractice cause of action” (Schafrann v NV. Famka, Inc., 14 AD3d 363 [!st Dept 2005]). As stated previously, any damages asserted by plaintiffs occurred only after the conclusion of representation by the Rozenholc Defendants, and as a direct result of plaintiff entering into the Stipulation on October 12, 2011, when represented by new counsel Kriss & Feuerstein. Therefore, any alleged conflict could not have caused plaintiffs damages, and the complaint must be dismissed as to the Rozenholc Defendants.

It is undisputed that Kriss Defendants entered into the Stipulation, pursuant to which Former Landlord received a right to seek an entry of monetary judgment against plaintiff, a nominal party to the Holdover Proceeding. Plaintiff also claims that Kriss Defendants failed to oppose Former Landlord’s motion made on April 5, 2012, which was granted on default. Kriss Defendants have not conclusively demonstrated that they were no longer plaintiffs attorneys at the time of Former Landlord’s motion. A monetary judgment of$492,l 13.63 was entered against, and satisfied by, plaintiff. Hence, plaintiff has adequately pied a cause of action for legal malpractice, which survives Kriss Defendants’ motion (see Franklin, 199 AD2d at 221; Leder, 31 AD3d at 267-268).”