Defendant attorneys in legal malpractice cases often have valid, technical, factual and compelling defenses.  Sometimes they claim that the alleged malpractice is a question of judgment; sometimes the law suit is too late.  In other examples, there is a less than clear relationship between the attorney and plaintiff, perhaps beneficiary to an estate or plaintiff sues an opponent’s attorney.

Here, in Zautner v. Arcodia, 2009 Slip Op 31362(u), Justice  Joseph C. Terasi cuts to the chase, and denies summary judgment.  Plaintiff is the seller of a house, and defendant is his attorney.  The contract called for defendant to hold the down payment, which in this case was sizeable.  Down payments are, in one instance, the remedy for buyer wrongfully cancelling the contract.

Defendant failed to collect the down payment, and of course, the buyer wrongfully cancelled.  What was defendants excuse?  He said that in his area of the state, brokers usually held onto the deposits, so he allowed the broker to hold onto it.  What of the fact that seller had no broker, and the house was for sale "by owner ?"

Defendant apparently had no answer.  Summary judgment granted against the attorney.