What happens when four people get together and decide to open a restaurant?  Often enough, they are friends, and  have only the highest regard for each other.  They trust each other, and have high expectations that each is ready to get going and get the business started.  It does not always work that way.  We see, in   Battaglia v Grillo ;2011 NY Slip Op 32691(U);October 11, 2011 ;Sup Ct, Nassau County ;Docket Number: 014807/2010 ;Judge: Ira B. Warshawsky, just how sour it might all go.

"Giovanni Battaglia ("Battaglia ), Nancy Piraino ("Nancy P. ), Massimo Grillo Grilo ), and Bartolomeo Piraino ("Bart P. ) embarked on a project of opening a restaurant to be known as The Cove Cafe, at 58-60 Landing Road, Glen Cove, NY. Drago was the builder they used to build-out the restaurant, and movant, defendant and third-party defendant, was the attorney who drafted the operating agreement for plaintiff Macabagi, LLC. He also represented Nancy Piraino in her acquisition of the real property in her own name, for which she obtained a $200 000 mortgage against the purchase price of $275 000. "

"The Second Amended Complaint includes a Second Cause of Action against Spadaccini in which Battaglia alleges that he retained Spadaccini to represent his interests in connection with the purchase of the real estate. He claims that he was advised by Spadaccini that each of the four individuals were to contribute $100 000 toward the purchase and development of the property, with each of them having a 25% interest in the real estate. Instead,. Spadaccini arranged for the property to be purchased in the name of Nancy P. only, with his contribution being used toward the purchase, and the property subjected to a mortgage, thereby diluting whatever interest he was to obtain in the property. Nancy P. subsequently executed a deed to Macabagi, LLC on April 6, 2010. As a consequence, Battaglia who has a 25% membership interest in Macabagi, is a 25% owner of the real estate, subject to a $200 000 mortgage. He claims that his investment is in jeopardy because Grilo and Bart P. , also each holding a 25% membership interest in the property, have not made their $100 000 contribution."

"Allegations with respect to alleged violations of the disciplinary rules cannot, standing alone, substantiate a claim for professional malpractice. (Pilard v, Goodman 82 A.D.3d 541 (1 Dept. 2011)). Where, however, the joint representation produces a circumstance in which counsel
is precluded from asserting a defense on behalf of one, because it would act to the detriment of the others, a finding of malpractice may follow. "

"Thus, it cap be seen, that an ostensible violation of the disciplinary rules, the [* 4] representation of parties with differing interests, led to the imposition of liability on an individual who had no role in the hiring or firing of the complaining former employee.. Such is not the case in this instance. The parties have a commonality in interest in acquiring title to a parcel of real property in the name of a limited liability company in which they each hold a 25% membership interest.  This is precisely what they now have, albeit subject to a $200 000 mortgage obtained by Nancy P. in conjunction with the purchase of the property in her own name. Since the parties seem no longer interested in proceeding to the final step of operating The Cove Cafe at the premises, the remedy which they ought be seeking is the dissolution of Macabagi , LLC and the distribution of the assets in accordance with the contributions made by the members. There is nothing more than speculation that those who have contributed to the purchase and renovation of the premises will not be made whole. Neither plaintiffs nor defendant and third-party plaintiff have yet to sustain actual or ascertainable damages, and certainly not because of the representation of all members of Macababi by Spadaccini. If the proposal to open a restaurant fails, it can be blamed on the lack
of funding; with some persons not even making their initial $100 000 contribution.
Battaglia claims that the premises are subject to a contract of sale for $375 000, and even
that is subject to obtaining a use variance. If title closes for that amount, the proceeds will not be
sufficient to satisfy the mortgage, which is in default, pay delinquent real estate taxes , and
reimburse him for his initial $100 000 investment. Nevertheless, unless and until that occurs
Battaglia has not sustained actual damages."