Lam v Weiss 2023 NY Slip Op 04308 Decided on August 16, 2023 Appellate Division, Second Department is the story of what happens when an attorney takes on a case and lets it sit for a period of time. Taking place right around Labor Day, with a foreclosure auction scheduled in the next several days, the house was lost.

“On or about August 7, 2017, Hao Lam met with the defendant Ronald D. Weiss, an attorney and the principal of the defendant Ronald D. Weiss, P.C., a law firm, for the purpose of seeking legal advice to avoid losing the home. At the time of the meeting, the plaintiffs were allegedly unaware that a foreclosure auction was scheduled for September 5, 2017. Therefore, Hao Lam did not inform Weiss of the scheduled auction during their meeting, although he purportedly advised Weiss that the home was “under foreclosure.” After obtaining some information about the plaintiffs’ finances, Weiss allegedly recommended that Hao Lam pursue a mortgage modification agreement with the lender. Weiss also purportedly advised Hao Lam that he and his wife were [*2]”excellent candidates for Chapter 13 bankruptcy[,] which would allow [them] to keep their home and retain the equity [therein],” and that his firm could represent them in such a proceeding if efforts to secure a mortgage modification agreement from the lender did not bear fruit. Based on this recommendation, Hao Lam agreed to retain Weiss’s law firm for the purpose of pursuing a mortgage modification agreement, executing a retainer agreement several days later.

On August 31, 2017, Weiss sent the plaintiffs a solicitation letter concerning the upcoming foreclosure auction, the substance of which implied that it was a form document sent to prospective clients, even though the plaintiffs had already retained Weiss’s firm. The letter, inter alia, stated that the plaintiffs had multiple options available to them to avoid losing the home, including filing a bankruptcy petition. Upon receipt of the letter on September 1, 2017, Hao Lam, allegedly believing that Weiss was in the midst of working to save his home from foreclosure, contacted Weiss’s office and left a message. Receiving no response, he called again the next day and left another message. On September 5, 2017, the day of the auction, Hao Lam called a third time and eventually spoke to Weiss’s paralegal, who, among other things, indicated that Weiss was not available to meet for a few days. On September 8, 2017, Hao Lam met with Weiss at his office, allegedly learning for the first time that his home had been sold at the foreclosure auction three days earlier. Weiss purportedly apologized for his “mistake.” The plaintiffs were later forced to vacate their home.”

“Here, the Supreme Court erred in concluding that the plaintiffs failed to set forth facts demonstrating that the defendants breached any duty owed to them. The plaintiffs’ allegations, inter alia, that Weiss failed to ascertain the status of the foreclosure action before recommending a strategy, and that his proposed strategy of focusing on the pursuit of a mortgage modification was “futile” in light of the then upcoming foreclosure auction, were sufficient, if true, for a factfinder to determine that Weiss offered negligent advice (see Esposito v Noto, 132 AD3d 944, 945-946; Coccia v Liotti, 70 AD3d 747, 753; Terio v Spodek, 25 AD3d 781, 782-785). Moreover, the court improperly determined that the defendants could not be held liable pursuant to the attorney judgment rule, i.e., that Weiss’s mortgage modification focused strategy, as merely the “selection of one among several reasonable courses of action[,] does not constitute malpractice” (Silverman v Eccleston Law, LLC, 208 AD3d 705, 707 [internal quotation marks omitted]). The defendants improperly raised this issue for the first time in their reply affirmation, and there is no indication that the plaintiffs were afforded the opportunity to submit a surreply affirmation (see Ayers v Bloomberg, L.P., 203 AD3d 872, 875). In any event, the defendants failed to “offer a reasonable strategic explanation” for recommending pursuit of a mortgage modification agreement less than one month before the scheduled foreclosure auction as the means of avoiding loss of the plaintiffs’ home, as would have been required to establish a defense based upon the attorney judgment rule (Ackerman v Kesselman, 100 AD3d 577, 579 [internal quotation marks omitted]). Nor did the terms of the retainer agreement utterly refute the factual allegations of the amended complaint and conclusively establish a defense to the allegations of liability as a matter of law to warrant dismissal pursuant to CPLR 3211(a)(1) (see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 715). The fact that the defendants’ scope of representation as defined in the retainer agreement was limited to the pursuit of a mortgage modification agreement did not, inter alia, absolve them from potential liability for allegedly offering negligent advice during the initial meeting with Hao Lam.”