Hearing that your legal malpractice case is "unavailing" is terrifying.  Nevertheless, this case was dismissed, appealed, reversed, remanded, and immediately dismissed again, this time on summary judgment.  Garnett v Fox, Horan & Camerini, LLP  2013 NY Slip Op 30703(U)  April 5, 2013  Sup Ct, New York County  Docket Number: 114079/2008  Judge: Cynthia S. Kern is the story of a business gone bad, with crippling rent that it could no longer handle.

"Plaintiff commenced the instant action asserting, among other things, a claim for legal malpractice against defendant in relation to defendant’s representation of Boylan International,
Inc. (“Boylan International”) in an underlying rent non-payment action. Defendant now moves
for an order granting it summary judgment and dismissing plaintiffs complaint. For the reasons
set forth below, defendant’s motion is granted.

Over the years, Boyland International failed to make payments required by the Lease and
subsequent non-payment proceedings were initiated, including the Underlying Action herein at
issue. The Underlying Action was brought on or about August 2003, On or about April 2 1,
2004, Boylan International retained Fox Horan to represent it in the Underlying Action pursuant
to a written retainer (the “Retainer Agreement”). At that time, Boylan International was already
in default and facing eviction. However, after retaining Fox Horan, a stipulation was entered into
which, among other things, allowed Boylan International to Answer and assert an affirmative
defense. During the course of the litigation, the landlord’s attorney became ill and the case was
marked off the calendar for approximately two years. During this period, Boylan International
did not pay rent or additional rent and the arrears grew to approximately $675,000.

During trial, Fox Horan presented expert testimony of Gary Goldman in order to establish
that Boylan International should not be liable for $243,897 of the $276,000 in real estate tax
arrears based on the New York Supreme Court’s holding in Blacktar Publishing Company v.
460 ParkAssociates, 137 Misc.2d 414 (N.Y. Sup. Ct. 1987) (the“Blackstar defense”). In
Blackstar, the court found that a tax escalation clause in a commercial lease requiring the tenant
to pay as additional rent a percentage of real estate taxes for every year during the lease did not
necessarily require the tenant to pay for any increased tax assessments which resulted from
extraordinary improvements to the premises that were not contemplated by the parties at the time
the lease was executed. See id. Thus, both parties agree that the testimony of Mr. Goldman was
crucial as this was its only viable defense to the non-payment of the real estate taxes. Fox Horan
tried to offer various exhibits to corroborate the testimony of Mr. Goldman but the Court refused to admit these exhibits based on objections by opposing counsel. Both parties herein agree that
these exhibits were “improperly precluded.” After Mr. Goldman finished his testimony, Fox
Horan called Ms. Boylan to testify. While on the stand, after having been sworn in, Ms. Boylan
addressed the Judge directly before counsel from Fox Horan had an opportunity to ask any
questions. The Judge then went off the record and a settlement was reached (the “Stipulation of
Settlement”).

In the instant action, the defendant has presented sufficient evidence demonstrating the
absence of any material issues of fact warranting a grant of summary judgment in its favor. A
prima facie case for legal malpractice requires a plaintiff to establish “that the defendant attorney
failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member
of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would
have succeeded on the merits of the underlying action ‘but for’ the attorney’s negligence.” Lsder
v. Spigel, 9 N.Y.3d 836 (2007) (quoting Am-Base Corp. Y: Davis Polk & Wardwell, 8 N.Y.3d 6
 

Specifically, when the underlying action was settled, a plaintiff must show that
but for its attorney’s actions it would not have entered into the settlement or it would have been
entitled to a more favorable settlement. See Rau v. BorenkofJ; 262 A.D.2d 388,389 (lst Dept
1999); See Rogers v. Ettinger, 163 A.D.2d 257 (lst Dept 1990). Thus, in order to succeed “on a
motion for summary judgment to dismiss the action, a defendant must proffer admissible
evidence establishing that the plaintiff is unable to prove at least one of the essential elements of
his or her case.” E. Suydam v. J 0 ’Neill, 276 A.D.2d 549 (2ndD ept 2000).