It is relatively rare to get a second chance at summary judgment, but in North Flats LLC v Belkin Burden Goldman, LLP 2025 NY Slip Op 31640(U) May 6, 2025 Supreme Court, New York County Docket Number: Index No. 150420/2022 Judge: Richard G. Latin that’s exactly what happened.

“Plaintiff commenced this legal malpractice action against defendant, seeking to recover $3,000,000.00 in damages for defendant’s alleged negligence during its representation of plaintiff in connection with the coverage of plaintiff’s building as an IMD. Specifically, plaintiff alleges defendant deviated from the accepted standard of care by relying on plaintiff’s architect’s sworn certification of compliance with the fire and safety standards of MDL § 277 (Article 7-B [Art 7B]) with the Loft Board, and in so doing, failed to apply for an extension of the legalization deadlines associated with Art 7-B compliance, thereby prohibiting plaintiff from legally collecting rent from its tenants pursuant to MDL §§ 284 and 285(1),3 pending its receipt of a final residential COO (NYSCEF No. 89, [Complaint]). In response, defendant filed its verified answer with four counterclaims, seeking legal fees and sanctions, including, a money judgment in the amount of $83,209.33 for unpaid legal services, plus interest (NYSCEF No. 90, [Answer]). Defendant then brought a pre-discovery motion for summary judgment (motion sequence 001 [MS1]),4 in which it argued plaintiff’s complaint should be dismissed. This court denied the motion by the Decision and Order dated, August 23, 2022, as premature. However, as the motion was also denied without prejudice, defendant was granted leave to, “refile upon the completion of discovery and with an explanation as to whether defendant could have made an application to withdraw plaintiff’s architect’s certified opinion on Article 7B compliance and then seek an extension if [defendant] knew, or should have known, that there were legitimate reasons to doubt actual compliance” (North Flats LLC v Belkin Burden Goldman, LLP, 2022 N.Y. Misc. LEXIS 37469 *1 [Sup Ct, NY County Aug. 23, 2022, No. 150420/2022] [NYSCEF No. 92]). The First Department affirmed that decision on appeal, holding, as relevant here, that defendant’s failure “to submit an expert opinion demonstrating that defendant did not perform below the ordinary reasonable skill and care possessed by an average member of the legal community” was fatal to defendant’s motion (North Flatts LLC v Belkin Burden Goldman, LLP, 217 AD3d 427, 428 [1st Dept 2023] [Remittal Order]). Now that discovery is complete, defendant renews its application, moving pursuant to CPLR 3212, for summary judgment to dismiss plaintiff’s claim for legal malpractice, and for summary judgment on its counterclaims for legal fees and sanctions (NYSCEF No. 84, motion sequence 004 [MS4]).”

“In support of its position and in compliance with the First Department’s directive, defendant submits the expert opinion of Lanny R. Alexander, Esq., (Alexander) an attorney with over thirty years of experience, and a former Executive Director/General Counsel for the Loft Board (NYSCEF No. 87, [Alexander Affidavit]). Alexander asserts that defendant did not commit malpractice for several reasons. Of particular relevance, Alexander concludes that it was reasonable for defendant to rely on the architect’s Art 7-B certification. Alexander states it is often necessary for lawyers to rely on the expertise of professional architects. Further, Alexander states that defendant was only made aware of the tenants’ answers, filed in plenary actions, seeking unpaid rent on plaintiff’s behalf, on May 17 after the close of business.Therefore, the deadline to file an extension had passed. While these answers contained an affirmative defense alleging plaintiff was not in compliance with Art 7-B, the pleading was devoid of any factual support. Therefore, even if defendant had received these answers prior to the deadline, the pleading would not have been sufficient to cause the defendant to doubt the validity of the 7-B certification, as bare legal conclusions are insufficient to raise an affirmative defense. As such, Alexander states that defendant had no reason to doubt the validity of the 7-B certification at any point prior to the deadline to file for an extension of the 7-B compliance deadline. Additionally, Alexander states a tenant’s failure to pay rent is insufficient to cause an attorney under these circumstances to be concerned about the validity of a 7-B certification, as a loft tenant’s nonpayment of rent is commonplace and “wholly unremarkable” (Id. at ¶ 31).”

“In opposition, plaintiff offers the expert opinion of Jason M. Frosh, Esq., (Frosh) an attorney with ten years of experience representing owners in Loft Law (NYSCEF No. 111, [Frosh Affidavit]). Frosh contends that defendant was on notice that the Art 7-B certification would be subject to challenge earlier than defendant alleges, allowing defendant time to file an extension. In support of this contention, Frosh provides a copy of the Capone tenant answer filed on May 12, 2021 (NYSCEF No. 114, [Capone Answer]), from one of the plenary actions, and an email between David Frazer (Frazer), Capone’s attorney, and the defendant. The email is specifically marked in capital letters, “FOR SETTLEMENT ONLY”, in which Frazer asks defendant to, “please provide proof [of] Art. 7-B compliance” (NYSCEF No. 116, [Frazer Email]).”

“Frosh asserts, because this answer contains a nearly identical affirmative defense to the other tenant answers alleging plaintiff’s lack of Art 7-B compliance, it would have put defendant on notice and allowed defendant ample time to file an Art 7-B extension. Frosh’s assertion is unavailing, as defendant’s expert Alexander, previously addressed the context and circumstances of the affirmative defense, and that the lack of factual support and specificity of such an affirmative defense would not have caused any attorney to question the architect’s 7-B certification. CPLR 3013 requires that “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” Furthermore, unsworn emails that are not authenticated by an affidavit constitute inadmissible hearsay (see AQ Asset Mgt. LLC v Levine, 128 AD3d 620, 621 [1st Dept 2015]). As plaintiff has failed to produce an affidavit authenticating the Frazer email, it will not be considered. While Frosh contends that defendant’s actions were below the standard of care exercised by a reasonable attorney in similar circumstances, particularly within the Loft Law context, an attorneys’ “selection of one among several reasonable courses of action does not constitute malpractice” (Rosner v Paley, 65 NY2d 736, 738 [1985]). Further, an attorney’s error in judgment does not constitute legal malpractice (see Hand v Silberman, 15 AD3d 167, 167 [1st Dept 2005]). As plaintiff has failed to meet its burden of presenting evidence in admissible form sufficient to establish an issue of material fact requiring a trial, that part of defendant’s motion that seeks summary judgment dismissing plaintiff’s complaint is granted.”

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