Of the many aphorisms in law, "not good deed goes unpunished" is a pungent reminder of the Newtonian law that every action creates an equal reaction.  Here, in Campbell v Planet Asef Realty 2012 NY Slip Op 50679(U)   Decided on April 10, 2012   Appellate Term, Second Department  we see a recurring legal malpractice situation in one sector of the housing market.  It is the packaged closing for buyer.  In this situation buyer expects broker to provide inspection, mortgage negotiation, assessment and attorney for closing. 
 

"On September 2, 1998, plaintiff and a friend of hers went to the office of defendant Planet Asef Realty (Planet Asef). A broker who worked for Planet Asef showed them a house in Jamaica, New York. Without consulting an attorney, plaintiff and her friend returned to the Planet Asef office on the following day, where they signed a contract to purchase the house in "as is" condition, for the asking price of $189,000. The contract included warranties that the plumbing, heating and electrical systems were in working order and that the roof was free of leaks. On September 25, 1998, plaintiff and her friend consummated their purchase of the house.

Plaintiff brought this action against the seller of the house, the brokerage agency, and [*2]Robert Carrozzo, Esq., the attorney who had represented her at the closing, among others, to recover for damages she had allegedly incurred as a result of the purchase of the house. At her deposition, plaintiff indicated that she had understood that the broker would perform all necessary pre-closing services, including having the premises appraised, obtaining a mortgage commitment for plaintiff, and finding a lawyer to represent her at the closing.

At his deposition, Carrozzo testified that, on September 25, 1998, he had just completed another closing at the office of Planet Asef, when he was approached by a representative of Planet Asef and asked if he could represent plaintiff at her closing. He stated that, after agreeing to represent plaintiff, he had met with her for several minutes before the closing. Carrozzo said that, upon learning that plaintiff had not previously had the house inspected, he had drafted an additional one-page document, which was signed by the seller, plaintiff and her co-purchaser, and which extended both plaintiff’s right to have the premises inspected and the seller’s guaranty of the plumbing, heating and electrical systems and the roof for a period of eight days following the closing. Thereafter, plaintiff closed on the purchase of the house.

Plaintiff failed to have the house inspected during the eight days following the closing or, indeed, until July 1999, at which time she learned that damage from a former structural fire had apparently been cosmetically masked, and that the house required structural remediation, for an estimated cost of $65,000 to $80,000.

At the time plaintiff met Carrozzo, she had already entered into a contract to purchase the house in "as is" condition, with guarantees only as to the plumbing, heating and electrical systems, as well as the roof, none of which were to survive closing. New York adheres, in general, to the doctrine of caveat emptor in real property sales (e.g. Bernardi v Spyratos, 79 AD3d 684, 687 [2010]; Beach 104 St. Realty, Inc. v Kisslev-Mazel Realty, LLC, 76 AD3d 661, 664 [2010]), and a purchaser who, having failed to perform due diligence as to the condition of property prior to signing a contract that provides for the sale of real property in "as is" condition, [*3]is bound by the contract despite structural deficiencies she may later discover in the property (see Daly v Kochanowicz, 67 AD3d 78 [2009]).

Here, plaintiff’s complaints arise from later-discovered structural deficiencies in the property. As Carrozzo demonstrated that plaintiff had committed to the purchase of the property in "as is" condition before she had met Carrozzo and before he had performed legal services for her, Carrozzo presented evidence that plaintiff was unable to prove at least one essential element of her cause of action against him: to wit, that by a breach of his duty, Carrozzo had caused plaintiff’s alleged damages. It was thus incumbent on plaintiff to come forward with evidence that a triable issue of fact existed as to Carrozzo’s liability (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). As plaintiff failed to meet this burden, we conclude that the Civil Court properly awarded summary judgment dismissing plaintiff’s cause of action against Carrozzo for legal malpractice. "