It is a frequent trope in the legal malpractice world that LM claims are made reflexively in order to avoid payment of attorney fees.  While that might actually happen, our anecdotal examination finds that most legal malpractice claims are well considered, and are generally meritorious. The same is not necessarily true of Judiciary Law 487 claims after the Court of Appeals decided Amalfitano v Rosenberg  12 NY3d 8,   February 12, 2009 Read, J.  Court of Appeals.  Lin Shi v Alexandratos
2016 NY Slip Op 01560 [137 AD3d 451]  March 3, 2016  Appellate Division, First Department provides an example.  This is a residential real estate sales contract which never closed.  The Court had to decide whether purchaser had waited too long to try to cancel.  In the swirl, purchaser asserted a claim for JL 487 against the escrow holder.  It was summarily dismissed.

“The residential contract of sale entered into between plaintiff and defendants Panagis Alexandratos and Carol Alexandratos provided that, if plaintiff did not receive a commitment for a first mortgage loan from an institutional lender on or before the “Commitment Date,” he “may cancel this contract by giving Notice to Seller within 5 business days after the Commitment Date.” It is undisputed that plaintiff failed to give the Alexandratoses notice of cancellation within five business days after the date on which the extension period he had requested and been granted expired. Plaintiff’s argument that the mortgage contingency clauses of the contract constituted a condition precedent to his purchase of the Alexandratoses’ house is belied by the contract language and by plaintiff’s own conduct in requesting an extension of the mortgage contingency date before the initial 60-day “Commitment Date” term expired (see Regal Realty Servs., LLC v 2590 Frisby, LLC, 62 AD3d 498 [1st Dept 2009]).

Plaintiff’s equitable restitution cause of action is barred by the existence of the contract of sale (see IIG Capital LLC v Archipelago, L.L.C., 36 AD3d 401, 404-405 [1st Dept 2007]).

Plaintiff’s causes of action against defendant Triades for breach of fiduciary duty and violation of Judiciary Law § 487 were correctly dismissed since documentary evidence established that Triades, as escrow agent, handled the down payment in accordance with the contract’s escrow terms (see Carter Fin. Corp. v Atlantic Med. Mgt., 268 AD2d 233 [1st Dept 2000], lv denied 94 NY2d 764 [2000]). We have considered plaintiff’s remaining arguments and find them unavailing. Concur—Tom, J.P., Saxe, Richter and Kapnick, JJ.”