Real estate litigation and legal malpractice share a long brotherhood, and Chef Michael Barton Rest., LLC v Wknapp LTD. 2025 NY Slip Op 35003(U) December 23, 2025
Supreme Court, New York County Docket Number: Index No. 654339/2022 Judge: Kathleen Waterman-Marshall is an example of how the lack of privity dooms the claim.

“This action arises out of the sale of a restaurant business. Defendant Wknapp LTD
(“Wknapp”) sold its restaurant business to plaintiff Chef Michael Barton Restaurants LLC
(“Barton Restaurants”) pursuant to an Asset Purchase Agreement (the “ASA”) and a later amended Asset Purchase Agreement (the “Amended ASA”). Mr. Knapp signed both ASAs in his corporate capacity on behalf of Wknapp, and in his individual capacity only “as to his obligations under paragraph 14.” Defendant and second-third party plaintiff Elissa Hecker, Esq. (“Ms. Hecker”) was Barton Restaurants’ attorney in the purchase transaction.
As relevant to this motion, paragraph 14 of the ASA is a non-compete covenant. When
the ASA was amended, the paragraph numbering changed, and paragraph 14 of the ASA was renumbered as paragraph 13 in the Amended ASA. Despite being renumbered as paragraph 13 in the Amended ASA, the non-compete paragraph continued to internally reference itself as paragraph 14. The signature block for Mr. Knapp in both the ASA and Amended ASA stated that he signed in his personal capacity only as to paragraph 14, notwithstanding the change in paragraph numbers.
Barton Restaurants and Michael Barton commenced this action alleging, in sum and
substance, that Mr. Knapp and Wknapp breached the express warranties in the ASA by
misrepresenting the condition of the premises, and that Ms. Hecker committed malpractice by failing to perform the appropriate due diligence to discover publicly available unresolved Department of Building violations related to the premises. By decision and order dated October 11, 2023, the jurist previously assigned to this matter dismissed plaintiffs’ claims against Mr. Knapp, finding that the only portion of the ASA signed in Mr. Knapp’s individual capacity was the covenant not to compete with plaintiffs after the sale.
In December 2024, Ms. Hecker filed the second third-party action against Mr. Knapp,
seeking common law indemnification and contribution from him for any damages the Barton plaintiffs obtain against Ms. Hecker.”

“Ms. Hecker’s second-third party complaint for contribution and indemnification is not
viable because there is no basis to seek contribution or indemnification for legal malpracticefrom Mr. Knapp (see generally, Rivas v Raymond Schwartzberg & Associates, PLLC, 52 AD3d 401 [1st Dept 2008]). Contrary to Ms. Hecker’s argument, neither the ASA nor the Amended ASA require Mr. Knapp to contractually indemnify Ms. Hecker for legal malpractice.
To the extent that Ms. Hecker’s second third-party complaint seeks common law
indemnity, it is likewise unviable because she did not delegate her due diligence responsibility as counsel for Barton Restaurants to Mr. Knapp (Board of Mgrs. of Oliver Park Condominium v Maspeth Props., LLC, 170 AD3d 645, 647 [2d Dept 2019] [party seeking common law indemnification “must have delegated exclusive responsibility… to the party from whom indemnification is sought”]; Desena v North Shore Hebrew Academy, 119 AD3d 631, 635 [2014] [“predicate of common law indemnity is liability without actual fault”] quoting Trustees of Columbia Univ. v Michell/Giurgola Assoc., 109 AD2d 449, 453 [1st Dept 1985]). That Mr. Knapp owes a duty to Ms. Hecker’s former client Barton Restaurant under the non-compete covenant does not transform into a duty owed to Ms. Hecker regarding her due diligence as counsel. Put simply, Mr. Knapp does not share in Ms. Hecker’s responsibility, if any, for plaintiffs’ alleged malpractice loss (Rivas, 52 AD3d at 401).
Contribution is permitted only between parties who are subject to liability for damages
for the same injury (CPLR § 1401). “The critical requirement for apportionment under… CPLR article 14 is that the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought” (Nassau Roofing & Sheet Metal Co. Inc. v Facilities Dev. Corp., 71 NY2d 599 [1988]). As Mr. Knapp has been dismissed from the main party action, as a matter of law he does not share in responsibility for the injuries alleged in the main party action and, therefore, contribution for the main party claims is unavailable (see generally, Gonzales v Jacoby & Meyers, 258 AD2d 560 [2d Dept 1999] [law firm could not seek contribution from third-party for malpractice claim where the third-party was not responsible for the malpractice]).
Therefore, dismissal of the second-third party complaint is also appropriate under CPLR
3211(a)(7).”