Creadore v Rosenberg & Estis, P.C. 2023 NY Slip Op 31253(U) April 19, 2023
Supreme Court, New York County Docket Number: Index No. 155690/2022
Judge: Lyle E. Frank is an illustration of what happens when attorneys are terminated and then the underlying case settles while attorney # 2 is representing Plaintiff (or Plaintiff is pro-se).
“Plaintiff hired defendant lawyers to represent him in a real estate sales deposit dispute in New York. Plaintiff as the seller believed that the purchasers violated the “best efforts” provision in the sales contract, and he had reason to keep the entire deposit. Defendants did not raise the “best efforts” standard in their answer to the action commenced by purchasers in federal court and only recouped half of the deposit. Plaintiff believed the omission is a legal malpractice and filed the suit in this court, alleging twelve causes of action, including malpractice, defamation, accounting, conversion, and violation of Judiciary Law § 487, etc. Defendants filed the motion to
dismiss all the claims pursuant to CPLR § 3211 (a)(l), (a)(7) and the doctrine of “duplicative claims”.
“Here, plaintiff failed to plead a cognizable legal malpractice claim. First, failure to raise
the “best efforts” standard to which agreed by purchasers in the sales contract could be deemed as a professional negligence by defendants. A party’s promise to use best efforts is valid consideration, and, where it is clear from the language of an agreement that the parties intended to be bound, and there exists an objective method for supplying a missing term, the parties should be held to their bargain. Maestro W Chelsea SPE LLC v. Pradera Realty Inc., 38 Misc. 3d 522, 525.
Here, in the rider to the sales contract, purchasers promised to use best efforts to “comply promptly with reasonable requests made by the Board.” See NYSCEF Doc. No. 18, page 10. An interview request from the Board is a reasonable one and failure to comply with it is a breach of the promise, thus making it the basis for plaintiff to object to refund of the deposit and frustrating purchasers’ declaratory judgment motion. See NYSCEF Doc. No. 81, ,i 38. Therefore, failure to raise the “best efforts” standard in the answer to the declaratory judgement motion could be deemed as a professional negligence by defendants, the more so because they are self-proclaimed “premier real
estate” lawyers in New York City. Id. at ,i 20.
The problem is negligence alone is far from enough to build a case for legal malpractice. Plaintiff also needs to plead the actual damages and the proximate cause prongs of the test. Here, plaintiff did not elaborate on the basis for the damages sought in the complaint. The deposit amounts to $190,000 in total and plaintiff did get a portion of it in return pursuant to the final settlement agreement with the purchasers. See NYSCEF Doc. No. 52. The court couldn’t figure out why plaintiff demanded at least $350,000 for actual damages associated with the legal malpractice claim. Again, “the damages claimed in a legal malpractice action must be ‘actual and ascertainable’ resulting from the proximate cause of the attorney’s negligence. The damages
claimed cannot be too speculative and incapable of being proven with any reasonable certainty.” Zarin v. Reid & Priest, 184 A.D.2d 385, 385 [1st Dept. 1992].
Plaintiff also failed to allege that any legal malpractice by defendants proximately caused the actual damages incurred by him. The Court of Appeals stressed that “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.” Rudolf at 442 ( emphasis added). After relieving defendants as counsel in the underlying case, plaintiff litigated the case prose and settled with purchasers with a number less than the full deposit. If the “best efforts” provision is the linchpin to his case, as claimed by plaintiff in the complaint, then why did he still incur certain
damages in the settlement or why didn’t he press on with the legal theory and prevail in the underlying action, given that he had full control of the proceedings then? See NYSCEF Doc. No. 49 The First Department has emphasized the burden time and again: “[a] plaintiffs burden of proof in a legal malpractice action is a heavy one. The plaintiff must prove first the hypothetical outcome of the underlying litigation and, then, the attorney’s liability for malpractice in connection with that litigation. The requirement of proving a case within a case is a distinctive feature of legal malpractice actions arising from an attorney’s alleged negligence in preparing or conducting litigation. It adds an additional layer to the element of proximate cause … ” Lindenman v. Kreitzer,
7 A.D.3d 30, 31 (emphasis added).”