Real Estate transactions and litigation take up a major space in the legal malpractice world. Lending Assets LLC v Gerbi 2025 NY Slip Op 31229(U) April 10, 2025 Supreme Court, New York County Docket Number: Index No. 152329/2023 Judge: Judy H. Kim is one such example.

“In this legal malpractice action, plaintiff alleges that on September 10, 2021, it loaned Gold Crescent Moon, LLC $325,000.00 to finance Gold Crescent’s purchase of property located at 5114 SW 153rd Place, Miami, Florida 33185, which loan was to be secured by a mortgage on that property (NYSCEF Doc No. 1, complaint at ,r,r5-6). Plaintiff further alleges that on September 23, 2021, it loaned $975,000.00 to Idea Holdings LLC to fund Idea Holdings’ purchase of property located at 3501 SW 132nd Avenue, Miami, Florida 33027, which loan was also to be secured by a mortgage on that property (id. at if8). Plaintiff alleges that defendants Weltz Kakos Gerbi Wolinetz Volynsky LLP and Gabriel Gerbi, Esq., a partner in that firm, acted as plaintiff’s attorney with respect to these “loan transactions” and had a “non-delegable duty” to obtain lender’s policies insuring the mortgages and “ensure the mortgages against [these properties] were recorded in first lien positions,” but failed to do so, and “obtained forged and fraudulent policies of title insurance from a non-existent ‘title insurance company’ rendering Lending Assets’ mortgages uninsured” (id. at ,r,r9-14). As a result, plaintiff claims, it sustained damages of $1,300,000.00, i.e. the total amount of the two unsecured loans (id. at ,r,r23-31 ). Defendants now move, pursuant to CPLR 321 l(a)(l) and (7), to dismiss the complaint, arguing that no negligence by defendants proximately caused plaintiff’s loss but that documentary evidence establishes that a third party, Apex Title Agency Incorporated, was responsible for insuring and recording the mortgages in question. In connection with this latter argument, defendants submit a complaint filed by plaintiff in the Circuit Court of the Tenth Judicial Circuit of Polk County, Florida against one Dora Ameneiro Martinez (“Martinez”) under case number 2023-CA-000542 (the “Martinez Complaint”)…”

“However, the branch of defendants’ motion to dismiss the complaint pursuant to CPLR 321 l(a)(l) is granted. Pursuant to CPLR 321 l(a)(l), “[d]ismissal is warranted only if the documentary evidence submitted utterly refutes plaintiffs factual allegations and conclusively establishes a defense to the asserted claims as a matter of law” (Amsterdam Hosp. Group, LLC v Marshall-Alan Assoc, Inc., 120 AD3d 431,433 [1st Dept 2014] [internal citations and quotations omitted]). The Martinez Complaint satisfies this standard and mandates the dismissal of this action. “It is well settled that admissions in a pleading may constitute documentary evidence for purposes of a motion to dismiss” (Walker, Truesdell, Roth & Assoc., Inc. v Globeop Fin. Services LLC, 43 Misc 3d 1230(A) [Sup Ct, NY County 2013], affd sub nom. New Greenwich Litig. Tr., LLC v Citco Fund Services (Europe) B. V, 145 AD3d 16 [1st Dept 2016] [internal citations omitted]) and that such a judicial admission “can be a basis for dismissal of the plaintiff’s claim” where it is “unrebutted and refute[ s] an essential element of a plaintiff’s claim” (Jack C. Hirsch, Inc. v Town ofN Hempstead, 177 AD2d 683,684 [2d Dept 1991]). Here, plaintiff’s allegations in the Martinez Complaint’s that it relied upon Apex to act as its title agent and record plaintiff’s mortgages in first position are a judicial admission refuting a central element of plaintiff’s claim in this action, namely that defendants’ representation of plaintiff included recording and insuring the subject mortgages. To the extent plaintiff asserts, in opposition, that the complaint also alleges that defendants breached their duty to plaintiff by failing to “inquire into the bona fides” of Apex, the complaint contains no such allegation or, indeed, any mention of either Martinez or Apex. In light of the foregoing, this matter is dismissed (see Epic Wholesalers and Star Diamonds & Jewelry, Inc. v JP. Morgan Chase Bank, NA., 31 Misc 3d 1237(A) [Sup Ct, Kings County 2011] [“admissions made by plaintiffs in the 2009 action and the bankruptcy court action refute an essential element of their claim in the present action, that the named and intended payee, Prestige, did not receive the funds … “]).”