What is an attorney at a real estate closing required to do and when does a failure to do so bleed into legal malpractice? Mah v 40-44 W. 120th St. Assoc., LLC, 2019 NY Slip Op 33071(U) October 10, 2019 Supreme Court, New York County Docket Number: 650927/2016 Judge: Robert R. Reed provides some answers. Here, in a condo development gut renovation the purchasers were promised roof decks. The City Department of Buildings ruled them illegal.
“In this action, plaintiffs seek damages against the sponsor, the sponsor’s exclusive listing agents, and the attorneys who represented plaintiffs in their purchases of apartments Penthouse A (PHA) and Penthouse D (PHD) in the Park Place Condominium in Manhattan. Plaintiffs Timothy Lloyd Mah and James M. Carter III purchased PHA around September 5, 2012, and plaintiff Crystal Cash purchased PHD around September 7, 2012. ”
“As plaintiffs note, the complaint alleges that Jassen did not exercise “the degree of care, skill, and diligence commonly possessed and exercised by ordinary members of the legal community in performing pre-contract and post-contract ‘due diligence’ and review of title”
(NYSCEF Doc. No. 181 [Resko Aff in Opp] if 14 [quoting complaint]). To prevail on summary judgment, Jassen must show that the activities she has described are consistent with legal standards. As Jassen has not produced evidence showing that “she exercised an ordinary [degree
of] skill and knowledge” for real estate lawyers in the community, she has not sustained her burden on this motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Bakcheva, 169 AD3d at 625).
In addition, Jassen contends, Mah and Carter have not shown that she had access to information which showed that the roof deck was illegal. As plaintiffs’ opposition indicates, however, Jassen bears the initial burden in the context of her motion (see NYSCEF Doc. No. 181 [Resko Aff in Opp] if 16] [citing, inter alia, Alvarez v Prospect Hosp., 68 NY2d 320 ). She states that she was not negligent in checking the Certificate of Occupancy (CO) for the building because until the roof deck was constructed, the document would not include it as a permissible use. Department of Building’s Guide to: Certificate of Occupancy, which Jassen annexes, states although a building must update a CO if it changes or expands the building’s use, a final CO is issued only “when the completed construction work matches the submitted plans” (NYSCEF Doc. No. 121 ). This does not vitiate Mah and Carter’s contention, however, as there is an issue of fact as to whether Jassen should have taken any further steps, especially as the roof deck was a particular area of concern for her clients (see, e.g., NYSCEF Doc. Nos. 115-119 [email chains]). Jassen’s statement that that she “diligently reviewed the transaction documents” and went over the documents with Mah (NYSCEF Doc. No. 104 [Jassen Aff in Support] iii! 16-17) may support her argument at trial but does not refute the argument of her former clients (cf Bakcheva, 169 AD3d at 625). Furthermore, Jassen’s statement that she explained that the CO “could not and did not reflect use of the roof deck” (NYSCEF Doc. No. 104 [Jassen Aff in Support]~ 43) merely raises an issue of fact in light of the affidavits of Mah and Carter, which state that Jassen provided no
such explanation (see NYSCEF Doc. No. 186 [Mah Aff in Opp]~~ 5, 8; NYSCEF Doc. No. 187 [Carter Aff in Opp]~~ 6, 8).
Jassen argues that Mah and Carter additionally cannot show proximate cause. However, Mah and Carter claim that, if Jassen had not been negligent, she would have learned of the problem with the use of the roof and they would not have purchased the apartment or undertook to renovate the roof (compare Stackpole v Cohen, Ehrlich & Frankel, LLP, 82 AD3d 609, 610 [1st Dept 2011] [after a nonjury trial, the court properly dismissed the claim because plaintiff did not show that
“but for defendant’s negligence, she would not have purchased the apartment”]). This creates an issue of fact and renders summary judgment improper. ”