Here, seller’s attorney is sued for a real estate transaction gone bad.  The dispute was about title problems.  In Jenkin v Cadore, 2020 NY Slip Op 03649  Decided on July 1, 2020
Appellate Division, Second Department, one important issue is that Plaintiffs did not use an expert affidavit in opposition to summary judgment.

“On December 14, 2012, the plaintiff, James Jenkin (hereinafter the buyer), and the defendants third-party plaintiffs, Veronica Cadore and Michelle Cadore (hereinafter together the sellers), entered into a contract for the sale of real property in Brooklyn. The sellers were represented in the transaction by the third-party defendants, Peter J. Goodman and The Goodman Law Firm (hereinafter together the Goodman defendants). The contract required that the sellers provide marketable title.

On December 21, 2012, the buyer’s title insurance company raised certain objections [*2]to the sellers’ title to the subject property. On March 7, 2013, the buyer’s attorney sent Goodman a letter scheduling the closing for April 8, 2013, with marketable title as required by the contract and with time being of the essence. On March 18, 2013, Goodman rejected the proposed closing, indicating that the sellers were unable to deliver clear and marketable title at that time. However, Goodman also advised the sellers that all substantive title issues had been resolved and that the objections to title could easily be removed by ministerial action. He cautioned the sellers that they risked a lawsuit for specific performance by the buyer if they attempted to unilaterally cancel the contract. On March 21, 2013, the sellers emailed Goodman, indicating their belief that the contract had expired and authorizing Goodman to return the down payment to the buyer. On April 3, 2013, the buyer’s attorney sent Goodman a letter stating that the title insurance company had waived its objections to title, and rescheduled the closing for April 22, 2013, with time being of the essence. When the closing did not go forward, the buyer commenced this action against the sellers, seeking, inter alia, specific performance of the contract of sale.

Thereafter, the sellers commenced a third-party action against the Goodman defendants, seeking to hold them liable, inter alia, on a theory of legal malpractice for failing to terminate the contract of sale and refund the buyer’s down payment in accordance with their instructions. Following joinder of issue in the third-party action, the Goodman defendants moved, inter alia, for summary judgment dismissing the third-party complaint. Insofar as relevant, the sellers cross-moved for summary judgment on the cause of action in the third-party complaint to recover damages for legal malpractice. In an order dated April 14, 2017, the Supreme Court granted the Goodman defendant’s motion, denied the sellers’ cross motion, and dismissed the third-party complaint. The sellers appeal.

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages” (Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 845; see Bells v Foster, 83 AD3d 876, 877). ” To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence'” (Bells v Foster, 83 AD3d at 877, quoting Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018).

In order to be entitled to summary judgment dismissing a cause of action, a defendant “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). ” Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise an issue of fact requiring a trial'” (Buczek v Dell & Little, LLP, 127 AD3d 1121, 1123, quoting Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d 955, 956).

Here, the Goodman defendants established their prima facie entitlement to judgment as a matter of law dismissing the sellers’ cause of action to recover damages for legal malpractice through the affirmation of an expert witness establishing both that Goodman did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and the sellers did not sustain actual and ascertainable damages as a result of any alleged breach of Goodman’s duty (see Buczek v Dell & Little, LLP, 127 AD3d at 1123; Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d at 956).

In opposition, the sellers failed to raise a triable issue of fact, since they did not produce any expert evidence regarding whether Goodman’s conduct constituted malpractice and caused the sellers to incur damages, and under the circumstances of this case, such expert evidence was required for an evaluation of the adequacy and propriety of Goodman’s actions (see Healy v Finz & Finz, P.C., 82 AD3d 704, 706; Northrop v Thorsen, 46 AD3d 780, 782; Natale v Samel & Assoc., 308 AD2d 568, 569). In this regard, the record demonstrates that Goodman’s conduct in the instant case did not rise to the level of malpractice as a matter of law (cf. Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511, 514). The sellers’ conclusory and speculative contention that Goodman breached the duty of loyalty to them due to his professional relationship with the real estate broker [*3]handling the transaction was likewise insufficient to raise a triable issue of fact (see generally Morgan v New York Tel., 220 AD2d 728, 729).”


Email this postTweet this postLike this postShare this post on LinkedIn
Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.