This holiday week, swept with snow and high winds, brings a case which re-emphasizes our meme that legal malpractice may show up anywhere attorneys are at work.  Here in Country Club Partners, LLC v Goldman ;  2010 NY Slip Op 09309 ;  Decided on December 16, 2010 ;  Appellate Division, Third Department   we see an allegation of legal malpractice (not addressed here) and of breach of fiduciary duty in the real estate transactions surrounding a country club transaction.
 

"Plaintiff’s breach of fiduciary duty claim relates, in part, to Goldman’s allegedly improper actions occurring after SGMS’s representation of plaintiff ceased, and plaintiff’s malpractice claim relates, in p art, to defendants’ allegedly improper actions occurring during SGMS’s representation of plaintiff,  he two claims are not duplicative (see Kurman v Schnapp, 73 AD3d 435, 435-436 [2010]; Ulico  Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 9 [2008]; Weil, Gotshal &  Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]). "

"The attorney-client relationship "imposes on the attorney the duty to deal fairly, honestly and with undivided loyalty . . . including maintaining confidentiality, avoiding conflicts of interest,  operating competently, safeguarding client property and honoring the clients’ interests over the  lawyer’s" (Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d at 9 [internal  quotation marks and citations omitted]; see Krouner v Koplovitz, 175 AD2d 531, 532 [1991]). To  recover on its claim, plaintiff is required to "prove both the breach of a duty owed to it and damages  sustained as a result" (Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d at 10  internal citation omitted]). That is, a client must establish "actual and ascertainable  damaes" (Boone v Bender, 74 AD3d 1111, 1112 [2010] [internal quotation marks and citations ommitted]; see Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]) that would not have occurred "but for" the attorney’s conduct (Boone v Bender, 74 AD3d at 1113; see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d at 10; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d at 271-272). "For defendants to succeed on their motion for summary judgment here, they were required to present evidence in admissible form establishing that plaintiff is unable to prove at least one of these elements" (Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d at 926 [citations omitted]; see Boone v Bender, 74 AD3d at 1112-1113).

Here, summary judgment dismissing plaintiff’s cause of action alleging a breach of fiduciary duty was properly granted since defendants met their burden on their motion and, in opposition, plaintiff failed to raise a question of fact that defendants’ breach proximately caused it any ascertainable damages (see Boone v Bender, 74 AD3d at 1113; Brodeur v Hayes, 18 AD3d 979, 980-981 [2005], lv dismissed and denied 5 NY3d 871 [2005]). In support of their motion, defendants presented Kime’s affidavit, in which she stated that Michael Gordon, a member of [*3]plaintiff, contacted her about acquiring an option to purchase a portion of her property. Kime stated that she advised Gordon that she was not interested in selling an option to only a portion of her property, but instead desired to sell outright the entire parcel, including its residence. According to Kime, neither Gordon nor any other member of plaintiff made subsequent offers to purchase the entire parcel and negotiations with plaintiff ceased. Kime was thereafter approached by several people interested in purchasing the property and, in August 2006, she received two offers to purchase the entire parcel, one from Goldman and another from Todd Britton and Mary Britton, both for $435,000. Kime stated that she decided to accept Goldman’s offer over the Brittons’ offer because it included a higher down payment ($100,000 compared to $5,000) and was, in the opinion of her attorney, the stronger offer. In opposition to defendants’ motion, Gordon submitted an affidavit in which he stated that negotiations with Kime progressed to the point where an offer in the amount of $400,000 was made and an option agreement was drafted. "