Let’s assume that an attorney fails to make sure that there is a certificate of occupancy for the finished version of a home, and then a tree falls on the house, do we know enough to determine whether there was legal malpractice?  We fall into a familiar trap if our analysis ends with identification of a departure.  We must go on to reason whether the departure led to a bad proximate result.  In Nill v Schneider  2019 NY Slip Op 04392  Decided on June 5, 2019
Appellate Division, Second Department, there was a departure, but the Court found no proximate damage.  It appears that the homeowner got the insurance nevertheless and the certificate of occupancy nevertheless.

“In September 2010, the plaintiff entered into a contract to purchase a one-family home in Stony Brook (hereinafter the subject property) for the sum of $495,000, to be paid in cash. The plaintiff retained the defendant Isabel A. Schneider (hereinafter the defendant) to handle the transaction. The contract required the sellers to deliver a “certificate of occupancy, certificate of existing use or completion . . . for [a] 1 Family dwelling plus deck” prior to the closing. The contract also recited that the plaintiff had inspected the subject property, agreed to take it “as is,” and had not relied upon any representations made by the sellers concerning “any matter or thing affecting or relating to the [subject property].” The defendant obtained a title report, which included a certificate of existing use dated January 15, 1975, for a “1½ story 1 family residence . . . and deck,” and a survey of the subject property from 1974. The title report also included a survey of the subject property dated July 17, 2007, and a survey inspection report dated September 21, 2010.

The closing was held on September 27, 2010. On or about October 30, 2012, during Hurricane Sandy, a tree was uprooted and fell on the subject property, causing substantial damage to the sunroom (hereinafter the Florida room), the deck, and the master bedroom. At her deposition, the plaintiff testified that when the “hundred-foot tree” fell on the subject property, it “came from the side of [her] bedroom, so it took out [her] gable in [her] bedroom, then it went across the [Florida room] and it shattered the roof there, and then it went across the deck and it broke the deck, and then it laid down on the . . . back property line.” The plaintiff called her homeowner’s insurance carrier the next day, made a claim under her homeowner’s insurance policy (hereinafter the policy) for the property damage, and retained an architect to prepare plans for the reconstruction work. Thereafter, the plaintiff was allegedly told by the architect that the Florida room did not have a certificate of occupancy. It is undisputed that the plaintiff subsequently obtained certificates of occupancy for, [*2]inter alia, the Florida room and the deck. The construction work was completed in around June 2015. The plaintiff was reimbursed under the policy for, among other things, the architect fee, the cost of the survey, the permit fee, and the cost of the certificates of occupancy.

The plaintiff commenced this action against, among others, the defendant, to recover damages for legal malpractice, alleging that the defendant was negligent in failing to discover that certain structures on the subject property did not have certificates of occupancy. In particular, she asserted that the 2007 survey of the subject property, as compared to the certificate of existing use, showed the addition of, inter alia, the Florida room, the deck, and “the extension of the southern wall in the master bedroom.” The plaintiff subsequently moved for, inter alia, summary judgment on the issue of liability, and the defendant cross-moved for summary judgment dismissing the amended complaint insofar as asserted against her. By order dated November 14, 2016, the Supreme Court denied the plaintiff’s motion and granted the defendant’s cross motion. The plaintiff appeals. We affirm.”