Ressler v Farrell Fritz, P.C.  2022 NY Slip Op 31706(U) May 25, 2022 Supreme Court, New York County Docket Number: Index No. 156946/2020 Judge: David B. Cohen is a case about representing clients who object to neighbors’ building plans in a wetlands setting, where the neighbors are asking the municipality to allow for big changes.  Clients hire a law firm to stop the development.  Law firm files some papers, but either misses or did not monitor certain public notifications.  Was it law firm’s responsibility to monitor the public notifications?

“On September 19, 2018, plaintiffs executed an engagement letter (the Engagement Letter) retaining Farrell Fritz to represent them “in connection with the commencement of an
action against Village People LLC, and its principal, John Zaccaro, Jr. asserting possible adverse possession and other claims relating to real property located at Pennant Walk” (NYSCEF Doc No. 39, Ressler aff, Ex 3 at 1; NYSCEF Doc No. 71, defendants’ counterstatement of material facts, ,i,i 6-7). Guardino is a partner and Butler is an attorney at Farrell Fritz (NYSCEF Doc No. 71, ,3-4).

On September 25, 2018, Farrell Fritz, on behalf of plaintiffs, filed a summons with notice in an action captioned Ressler v Village People, LLC, Supreme Court, Suffolk County, Index No.
618618/2018 (the VP Action) (id., i19). That fall, defendants wrote four letters to DEC regarding tidal wetlands permit nos. 1- 4 728-03511, 1-4 728-05497, 1-4 728-05498 and 1-4 728-05499, which allowed Village People to construct four single-family residences on its properties (id., ,i 10; NYSCEF Doc No. 40 at 103, 107, 112 and 135). In the letter dated October 1, 2018, Guardino expressed plaintiffs’ objection to the permits and asked DEC to suspend the permits and related activities until a further review could be made (NYSCEF Doc No. 40 at 103 and 105).

In January 2019, defendants learned that Village People had applied to DEC to modify the permits issued for the tidal wetlands immediately to the west of the Property (NYSCEF Doc
No. 71, ,i 13). On May 3, 2019, DEC issued a permit modification (the 2019 Modification) for permit no. 1-4 728-05497/00001 to allow Village People to combine two lots into a single lot for the construction of one single-family dwelling and discontinued permit no. 1-4728-05498/00001 (NYSCEF Doc No. 81, Ressler aff, Ex 5).

On July 12, 2019, defendants, on behalf of plaintiffs, commenced a hybrid Article 78  proceeding captioned Ressler v New York State Dept. of Envtl. Conservation, et al., Supreme
Court, Suffolk County, Index No. 3668/2019 (the DEC Action) (together with the VP Action, the Actions) related to the 2019 Modification (NYSCEF Doc No. 71, ,i 17). The petition sought to: (1) vacate, annul and reverse a permit modification dated May 3, 2019; (2) declare the permit modification null and void; and (3) enjoin the Village of Saltaire from processing, hearing or deciding any pending or future application seeking to develop the properties that were the subject of the proceeding (NYSCEF Doc No. 40 at 4-5 and 9).
DEC moved to dismiss the petition as untimely under Environmental Conservation Law (ECL) § 25-0404, which provides that a person aggrieved by DEC’s issuance, denial, suspension
or revocation of a tidal wetlands permit may seek judicial review within 30 days of the decision. DEC argued that it had made information pertaining to the 2019 Modification available on the DEC Permit Applications (DART) Search portal, where it publicly posts detailed information on applications for tidal wetlands permits (NYSCEF Doc No. 46, Ressler aff, Ex 10 at 3). DEC posted notice that the 2019 Modification had been granted on the DART system on May 9, 2019 (id. at 4). DEC also argued that it required permit applicants to conspicuously post a permit sign at the site (id.). Village People, which had also moved for dismissal, claimed it had posted copies of the original permit and the 2019 Modification on the front gate and a tree in the walkway at its property (NYSCEF Doc No. 57, Ressler aff, Ex 21 at 4). In a decision and order dated January 29, 2020, the Supreme Court, Suffolk County (Santorelli, J.) granted the motions to dismiss (id. at 5). A motion for leave to reargue was denied on August 25, 2020 (NYSCEF Doc No. 23, ,i 21). ”

“Plaintiffs also move for partial summary judgment on the issue of defendants’ negligence in failing to timely file Article 78 proceedings challenging the 2019 and 2020 Modifications.
Plaintiffs argue that defendants should have known about DART since they had held themselves out as experts in matters involving the DEC. Plaintiffs allege that defendants failed to consult and monitor DART for information about Village People’s permit modification applications and that, had they done so, defendants would have learned when the DEC granted the modifications and could have moved for judicial review within the 30-day period fixed in ECL § 25-0404.

CPLR 3212 (e) provides that “summary judgment may be granted as to one or more causes of action, or part thereof, in favor of any one or more parties, to the extent warranted, on
such terms as may be just.” A party moving for summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The “facts must be viewed in the light most favorable to the non-moving party” (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks and citation omitted]). Once the moving party has met this prima facie burden, the burden shifts to the nonmoving party to furnish evidence in admissible form sufficient to raise a material issue of fact (Alvarez, 68 NY2d at 324). The moving party’s “[f]ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (id.). ”

“It is well settled that “[a]n attorney may not be held liable for failing to act outside the scope of the retainer” (Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC,
157 AD3d 479,482 [1st Dept 2018], citingAmbase Corp. v Davis Polk & Wardell, 8 NY3d 428 [2007]). Here, plaintiffs have not dispelled all questions of material fact as to whether they had engaged defendants to monitor DART for changes to the four tidal wetlands permits issued to Village People and to commence Article 78 proceedings challenging potential modifications to those permits. In defining the scope of defendants’ representation, the Engagement Letter states that “[Farrell Fritz] will represent you in connection with the commencement of an action against Village People LLC, and its principal, John Zaccaro, Jr. asserting possible adverse possession and other claims relating to real property located at Pennant Walk” (NYSCEF Doc No. 39 at 1). The letter further states that defendants shall provide legal services “in connection with potential litigation involving title to real property located in Saltaire” (id.). While the phrase “and other claims” is ambiguous, the Engagement Letter does not mention the DEC, the permits issued to Village People or the commencement of any proceeding to challenge future modifications or amendments to those permits. Further, the DEC issued the permits to Village People in 2017,
and the time within which to challenge that determination expired long before plaintiffs executed the Engagement Letter. Plaintiffs have not shown whether the Engagement Letter was ever modified to expand the scope of defendants’ obligations to include continually monitoring the four permits issued to Village People and authorizing defendants to commence legal proceedings if DEC were to modify those permits. Given plaintiffs’ failure to meet their prima facie burden, the branch of the motion seeking partial summary judgment on the issue of defendants’ negligence is denied without regard to the sufficiency of defendants’ opposition. “