What could be more New York than a case about real estate and parking? Here, the problem was construction of two homes, each of which required off-street parking. The seller set up a situation in which both houses had the parking, but it all got screwed up.
Muco v Sadiku 2019 NY Slip Op 50709(U) Decided on May 9, 2019 Supreme Court, Queens County Butler, J is the story of the two purchasers suing each other and every one else too.
“This action concerns two premises: (1) 60-28 60th Place, Maspeth, New York (the Muco premises or the first premises ) and (2) 60-34 60th Place, Maspeth, New York (the Sadiku premises or the second premises). The Mucos claim that the Sadikus are depriving them of an alleged easement burdening the latter’s property which permits the former to use two parking spaces.
Defendant/third party defendant/fourth party plaintiff 60th Court Maspeth LLC (60th Court) is the developer and seller of the two subject premises. Defendant 60th Court hired Vintage Homes, Inc. (Vintage), whose President is Danny Zivan, to serve as a construction manager and representative.
In order to obtain permits to construct the homes on the subject premises, defendant 60th Court had to show it would provide each of them with two off-street parking spaces. The Muco premises was not spacious enough for parking spaces, so defendant 60th Court decided to burden the Sadiku premises with an easement in favor of the Muco premises.
Acting as the representative of 60th Court, Vintage, by Zivan, retained fourth party defendant Rothkrug, Rothkrug & Spector LLP (RRS), a law firm, to prepare an instrument creating a permanent easement benefitting the Muco premises and burdening the Sadiku premises with two parking spaces and a means of access over the latter property from the public street known as 60th Court. RRS alleges that the instrument was merely intended to satisfy NYC Department of Buildings (DOB) requirements concerning construction permits and that the instrument contained no errors of omission or commission.
On February 5, 2009, 60th Court executed a Driveway Space Restrictive Declaration (the Declaration) prepared by RRS. The Declaration provided for an easement allowing ingress and egress over the Sadiku property to and from 60th Court, but did not expressly provide that the current and future owners of the Muco premises were to have exclusive use of two parking spaces on the Sadiku premises. The Declaration was recorded against the two properties on February 17, 2009 in the City Register’s Office.”
“The fourth party complaint brought against defendant Pacht is for legal malpractice. In an action to recover damages for legal malpractice, “a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages ***” ( Island Properties & Equities, LLC v Cox, 93 AD3d 639, 640 [2d Dept 2012]; McCoy v Feinman, 99 NY2d 295 ; Cosmetics Plus Grp., Ltd. v Traub, 105 AD3d 134[1st Dept 2013]; Fireman’s Fund Ins. Co. v Farrell, 57 AD3d 721 [2d Dept 2008]).
Pacht, denying that his actions or omissions could have been the proximate cause of any injury sustained by the Sadiku’s or 60th Court, purports to have made a prima facie showing of entitlement to summary judgment dismissing the fourth party complaint by (1) the submission of evidence in the record that Zivan and Demkowics informed the Sadikus before they closed title about the parking easement and (2) an interpretation of the Declaration as granting a parking easement. As to the first ground, the transcripts of the deposition testimony submitted in support of the cross motion contain conflicting versions of the events that occurred prior to the closing of title on the Sadiku premises, raising triable issues of fact, and, thus, Pacht failed to demonstrate a prima facie entitlement to judgment as a matter of law (see Stafford v Allied Bldg. Prod. Corp., 164 AD3d 1398[2d Dept 2018] [failure to make prima facie showing because of conflicting versions of traffic accident]). As to the second ground, this court has previously held that there is an issue of fact as to the meaning and intent of the Declaration. Moreover, Pacht did not rebut additional allegations of malpractice made against him: (1) that although he received a copy of the title report ordered by the Sadikus before they closed title, he failed to bring to the attention of the title company or the attorney for the Sadikus the existence of the Supplemental Declaration, and (2) that he failed to identify the easement on the deed he drew conveying title to the Sadikus.
Pacht is not entitled to summary judgment dismissing the fourth party complaint and all other claims against him.”
“COM did make a prima facie showing that the Sadikus did not sustain any damages. The Sadikus purchased their premises on October 4, 2010 for $690,000.00. COM submitted an appraisal of the Sadiku property as encumbered by the parking easement rendered by Victor Schlesinger of Republic Valuations which concludes that on October 4, 2010, the Sadkiu premises were worth $690,000.00 even as encumbered by the parking easement.
The burden on COM’s cross motion shifted to the Sadiku’s, requiring them to submit evidence showing that there is an issue of fact which must be tried (see Alvarez v Prospect Hospital, supra). They successfully sustained this burden. In regard to the element of actual and ascertainable damages, the Sadikus submitted an appraisal report from Matthew J. Guzowski, the President of Goodman-Marks Associates, Inc., and an affidavit from him which states: “We have determined that the subject property with the easement in place suffers a diminution in value due to the hypothetical easement being contested.” The conflicting affidavits of experts preclude summary judgment (see Haas v F.F. Thompson Hosp., Inc., 86 AD3d 913 [4th Dept 2011]; Florio v Kosimar, 79 AD3d 625 [1st Dept 2010]).
COM is not entitled to summary judgment dismissing the third party complaint and other claims against it.”