Breslin v Raich, Ende, Malter & Co., LLP 2016 NY Slip Op 32015(U) July 25, 2016 Surrogate’s Court, Nassau County Docket Number: 290592J Judge: Margaret C. Reilly is the story of a really, really big estate and how multiple professionals are said to have committed professional negligence.

“Robert Frankel (the decedent) died on April 21, 1995, survived by his wife, Adele Frankel-Loeb, and three adult children, Wendy Frankel, Richard Frankel and Lynn Frankel Fleetwood (Wendy, Richard and Lynn, collectively, the objectants). Under the terms of decedent’s will, each of the objectants is a beneficiary under Article III of the will and a beneficiary of 1/3 of decedent’s residuary estate. Prior to his death, the decedent owned a chain of stores and was a real estate investor and manager. The decedent and Breslin jointly owned a number of real estate ventures, and had personally and jointly guaranteed related bank debt of approximately $100,000,000.00. At the time of the decedent’s death, some of these ventures were in financial distress. Shortly after the death of the decedent, an arrangement was reached among the preliminary executors of the decedent’s estate, Gerald Deutsch, Stephen Levy, Breslin, and the decedent’s children, whereby Breslin’s family purchased control over a portion of the decedent’s assets, and reserved the right to acquire the remaining assets for $2,500,000.00 (the Weary Option). Pursuant to this agreement, on December 11, 1995, Breslin was appointed as successor executor of the estate, taking over management of the real estate ventures that previously had been jointly owned by Breslin and the decedent, as well as the decedent’s assets and properties. On September 12, 2012, Breslin filed a judicial accounting in which he sought settlement of his account, approval of legal fees, and his release and discharge, individually and as successor executor. The account shows total principal charges of $18,510,068.89 and income charges of $6,813,228.50, with total income of $5,478,074.46 on hand as of March 31, 2010.”

“Breslin hired Tenzer in 1995, when Tenzer was associated with a prior accounting firm, and continued to utilize Tenzer’s services after Tenzer joined Raich Ende as a principal and accountant in 2002, pursuant to a retainer letter, dated November 7, 2002. The defendants, among other services, were to prepare a final accounting for the Frankel estate. On February 22, 2012, the defendants produced the accounting, which covered the period from April 21, 1995 through March 31, 2010.”

“[M]alpractice in the statutory sense describesthe negligence of a professional toward the person for whom he rendered a service . . . an action for malpractice springs from the correlative rights and duties assumed by the parties through the relationship” (Cubito v Kreisberg, 69 AD2d 738, 742 [2d Dept 1979]). A plaintiff seeking to recover damages for legal malpractice must “show that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney’s breach of this duty caused the plaintiff to suffer actual and ascertainable damages” (Gaskin v Harris, 98 AD3d 941, 942 [2d Dept 2012] [citations omitted]). In Breslin’s complaint, he states that the defendants were retained “to perform a variety of accounting, audit, tax, and consulting services with regard to Breslin’s role as both a major creditor and Successor Executor of the Frankel Estate.” Breslin asserts that “for many years prior to December 1995, Tenzer had already provided substantial legal, accounting and tax services to Breslin . . .” and that “Tenzer repeatedly induced Breslin to repose an extremely high degree of trust and confidence in Tenzer with respect to numerous legal, tax and accounting matters . . . .” In his claim for legal malpractice, Breslin asserts that Tenzer breached his “duty to exercise due professional care and to render reasonable and competent legal advice and legal services . . . .  The court finds that the plaintiff’s complaint states a cause of action. The defendants’ motion to dismiss the cause of action for legal malpractice is DENIED. ”