How often is it that a judge gives legal advice?  Rarely does the Court set forth what whould have been the correct cause of action and then advise that there is still time.  Ferousis v Santamarina
2018 NY Slip Op 32725(U)  Supreme Court, New York County  Docket Number: 154418/2018
Judge: Arlene P. Bluth  is interesting, as well as for the final paragraph.

“This legal malpractice action arises out oft~e sale of a building owned by plaintiff. In September 2006, plaintiff entered into an exclusive real estate listing for the sale of his property located at 180 Borinquen Place in Brooklyn with D.J. Real Estate, Inc. (“DJ”). In January 2007, another real estate broker, Itzhaki Properties (NY) Inc. (“Itzhaki”), got involved. Itzhaki and DJ agreed to split any commission from a sale of the property.
Plaintiff received an offer for the building in February 2007 for $4.2 million but plaintiff declined. In October 2007, plaintiff entered into a contract to sell the building for $4 million with the same buyer that made the offer in February 2007. However, by that time DJ was purportedly no longer the exclusive broker and Itzhaki received the entire broker’s commission. DJ then commenced an action in Queens against both plaintiff and ltzhaki to recover its share of the commission. After trial, DJ was awarded a judgment for $60,000 against both plaintiff and ltzhaki. With interest, the judgment totaled over $100,000 and plaintiff paid the full amount of the judgment.”

“Plaintiff asserts legal malpractice claims against his first attorney (defendant Ruhman) and the Moving Defendants. Plaintiff claims that the Moving Defendants, who took over the representation of both Itzhaki and plaintiff in the Queens case in 2010, should not have agreed to represent both parties. Plaintiff observes that there was an ind<;!mnification agreement between plaintiff and Itzhaki dated October 9, 2007 that required ltzhaki to hold plaintiff harmless if another broker made a claim for a commission. Plaintiff insists that this constituted a clear conflict of interest that should have compelled the Moving Defendants to decline to represent both Itzhaki and plaintiff. ”

“Plaintiff also contends that the Moving Defendants failed to employ a proper legal strategy because a third-party complaint was never filed against ltzhaki and other parties, including the buyer and plaintiffs real estate attorney for the sale. Plaintiff maintains it would not have paid a judgment ifthe Moving Defendants had not committed legal malpractice .”

“Here, the Court grants the Moving Defendant’s motion to dismiss because plaintiff failed to state a cause of action. Plaintiff cannot demonstrate that he suffered damages because of the Moving Defendant’s negligence. ”

“Both plaintiff and Itzhaki were found liable for not paying DJ the commission and the instant legal malpractice case does not argue that the Moving Defendants’ alleged negligence caused plaintiff to be held liable. Instead, plaintiff complains about who paid the damages awarded to DJ. But that does not state a cause of action for legal malpractice because plaintiff can still commence an action for indemnification against Itzhaki. “Indemnification claims generally do not accrue for the purpose of the Statute of Limitations until the party seeking indemnification has made payment to the injured person” (McDermott v City of New York, 50 NY2d 211, 216, 428 NYS2d 643 [1980]). Plaintiff still has time to bring an indemnification claim against Itzhaki (see CPLR 213[2] [six-year statute of limitations for indemnity claims]).”

“If plaintiff got a free ride in the Queens litigation by having ltzhaki pay the legal bills and joining in the defense — that the original listing expired — and plaintiff never waived his right to indemnification from Itzhaki, then where is the legal malpractice? Even if he did not get a free ride, the fact is that he can still pursue indemnification, as the statute oflimitations has not yet run on the indemnification claim. Clearly, ltzhaki did not step up to pay the judgment, so plaintiff would have had to pay DJ and then chase ltzhaki.
On NYSCEF, only defendants Santamarina and Santamarina & Associates were served and there is no affidavit of service for defendant Ruhman. As more than 120 days has passed and no motion to extend the time to serve has been made, the case is dismissed in its entirety. It is dismissed against the moving defendants with prejudice and against Ruhman without prejudice. “: