Serrone v Southbridge Towers, Inc. 2019 NY Slip Op 32472(U) August 20, 2019 Supreme Court, New York County Docket Number: 653567/2018
Judge: Francis A. Kahn III is the story of a foreclosure in what was once a Mitchel-Lama building. Plaintiff succeeds on this motion in keeping the attorneys in the case.
“This is an action concerning the purported wrongful sale of a 2 cooperative apartment. Plaintiff Pasquale Serrone contends that despite his eviction from co-operative unit 4A located at 100 Beekman Street in Manhattan in 2015, his ownership interest in the Cooperative Company
Defendant Southbridge Towers, Inc., (“Southbridge”) remains. Plaintiff argues his ownership of his shares in Southbridge was not properly terminated before the unit was sold in 2018 to Defendants Frank and Monica Chung (“Chungs”) and that he is entitled to damages constituting the revenue from the sale plus interest. Plaintiff has not pled a cause of action seeking restoration of his ownership interest in the shares sold to the Chungs. ”
“However, Plaintiff properly pled a negligence claim against NMM and Roberts. Generally, claims of professional malpractice against an attorney are barred against those not in privity (see Good Old Days Tavern, Inc., v Zwirn, 259 AD2d 300 [1st Dept 1999]). An exception
exists and liability may be extended where a plaintiff sufficiently pleads acts of fraud, collusion, malicious acts or other special circumstances (see Leggiadro, Ltd. v Winston & Strawn, 119 AD3d 442 [Pt Dept 2014]).
Here, Plaintiff pled Southbridge did not own the shares the time of the disputed sale and NMM and Roberts acknowledge, they corresponded with Plaintiff by letters dated November 14, 2017 and November 29, 2017 regarding Plaintiffs equity in the subject apartment. The
surrender agreement that NMM and Roberts sought Plaintiff to sign, that accompanied the second correspondence, sought to extinguish “any remaining rights” Plaintiff had to the apartment. Despite Plaintiff not executing said surrender agreement NMM and Roberts
represented Southbridge in the March 1, 2018 closing for this apartment.
It is inescapable that NMM and Roberts were aware that Southbridge’ s ownership interest in the co-op shares was potentially fatally flawed and that Plaintiff may have retained an ownership interest. Yet, NMM and Roberts facilitated the consummation of the closing. These
actions sufficiently state a claim of collusion, malicious acts or special circumstances for pleading purposes (see A & M Bldg. & Condo Maintenance, Inc. v Atlas Elec. of Staten Is., Inc., 294 AD2d 520 [2d Dept 2002] [Claim against defendant’s law firm and lawyer sufficiently
pleaded where it was alleged firm committed fraud by submitting order discharging lien without indicating its conditional nature and without satisfying condition]; Green v Fischbein Olivieri Rozenholc & Badillo, 119 AD2d 345 [Pt Dept 1986] [Attorney’s liability to third-party premised
on commencing and prosecuting eviction proceedings without legal basis sufficiently pled fraud, collusion, malicious or tortious act]; see also Hahn v Wylie, 54 AD2d 629 [1st Dept 1976]; New York Cooling Towers, Inc. v Goidel, 10 Misc 3d 219 [Sup Ct, Queens Cty 2005]).
With respect to the proffered documentary evidence, NMM and Roberts argue it demonstrates Southbridge participated in the Mitchell-Lama Program and Plaintiff was required to surrender the disputed apartment to Southbridge at the end of his tenancy in exchange for the
refund of his equity, less any charges due plus any capital contributions that were approved (see NYSCEF Document #51, page 4, paragraph20; page 6, paragraph 32). However, in opposition, Plaintiff notes the privatization of the co-op building occurred while Plaintiff still both possessed the apartment and retained an ownership interest (see NYSCEF Document #84, page 2-3, paragraphs 4-7). Indeed, Plaintiff signed an agreement to participate in the privatization of the
building (see NYSCEF Document #84, page 2-3, paragraph 7 and #89, Plaintiffs Exhibit D, Schedule A). Thus, Plaintiffs claimed ownership interest is a vital disputed issue that NMM and Roberts’s documentation fails to definitively refute and requires denial of this branch of the motion. “