We’re having a little trouble understanding what went wrong in the transaction, and why the legal malpractice case was brought. It looks like the sub-sub-lessor bought the sub-lessor’s stock and then encountered trouble with the landlord. However, that theory emerged only on appeal. So, in Salyamov v Lyhovsky 2017 NY Slip Op 00929 Decided on February 7, 2017 Appellate Division, First Department we see the total disconnect between fact and liability.
“Plaintiff asserts a legal malpractice claim based on defendant’s alleged failure to confirm that a sublessor of premises in which plaintiff wished to operate a business had the owner’s consent to assign the sublease at issue. However, there was no assignment of the sublease; the subtenant was a corporation whose stock plaintiff purchased in the transaction at issue. Further, it is undisputed that the master lease allowed the sublessor to sublet the premises without the owner’s consent.
Plaintiff’s additional theory of liability, that defendant failed to ascertain the status of the master lease, was improperly raised for the first time in opposition to defendant’s motion for summary judgment (see Atkins v Beth Abraham Health Servs., 133 AD3d 491 [1st Dept 2015]).”