Bernardi v Spyratos ;  2010 NY Slip Op 09097 ;Decided on December 7, 2010 ;Appellate Division, Second Department  is the story of two neighbors who have locked horns over a waterfront property.  There are issues of encroachment, adverse possession, hidden water damage, legal malpractice and failures to take a survey at or before closing.  Important to this article is whether the attorneys for buyer failed to advise the client to get a new survey.  Interestingly there is no letter or writing on the issue.
 

"In order to recover damages against the Wilcox defendants for legal malpractice, the plaintiffs must show (1) that the Wilcox defendants failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession, and (2) that such negligence was a proximate cause of the actual damages sustained (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sayer, 8 NY3d 438, 442). Here, the plaintiffs submitted the deposition testimony of Wilcox, in which she repeatedly testified that she advised the plaintiffs of the possibility of obtaining an updated survey, which they refused to obtain. Accordingly, the plaintiffs failed to meet their initial burden of establishing an absence of triable issues of fact as to the alleged malpractice. Moreover, given that the underlying boundary dispute has not yet been resolved, the plaintiffs failed to establish causation or damages as a matter of law (id., see Northrop v Thorsen, 46 AD3d 780, 782). Accordingly, that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against the Wilcox defendants was properly denied (see generally Zuckerman v City of New York, 49 NY2d at 562).

However, the Supreme Court should have granted the plaintiffs leave to amend the complaint in Action No. 2 to assert a claim against the Wilcox defendants based upon their alleged failure to explain or delete certain clauses in the contract of sale. In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Lucido v Mancuso, 49 AD3d 220; Unger v Leviton, 25 AD3d 689). Here, there will be no prejudice or surprise to the Wilcox defendants by virtue of the amendment. They were aware of the plaintiffs’ allegations against Harrison concerning the condition of the premises, and Wilcox was extensively questioned during her deposition about her advice to the plaintiffs concerning the relevant clauses. Further, the allegation is not patently nonmeritorious. However, the plaintiffs’ proposed allegation against the Wilcox defendants in paragraph 106 of the proposed amended complaint, concerning the property condition disclosure statement, is patently without merit and was properly disallowed, as the Wilcox defendants were not the owners of the subject property (see Real Property Law § 465[1]). "