In this case, the court permits client to plead fraud even though legall malpractice is time barred.  Why? Unsophisticated client retains attorney for a first time purchase of a business.  Attorney undertakes complicated transaction for $ 3000.  As soon as the contract is ready, attorney tells client to sign a wavier, and then seems to have a conflict of interest and starts to represent the landlord and undertakes to evict the client.’

Hernandez v Marquez   2012 NY Slip Op 31112(U)   April 20, 2012   Supreme Court, New York County  Docket Number: 103531/11  Judge: Joan A. Madden:

"In October 2007, Hernandez retained Marquez, an attorney, who represented to her that he was competent to handle all aspects of the purchase of a restaurant and the acquisition of a liquor license. (Amended Complaint, 7 3). Hernandez “made it very clear to [Marquez] that she had never purchased a business before this particular purchase transaction, that she had no experience purchasing a business and that she had to rely on him completely for all aspects of the purchase of the restaurant with a liquor license.” (u 7 4). Marquez “promised that he would perform in the manner required by [Hernandez] and that she had nothing to worry about [if] she contracted with him” (a 7 5). In consideration for these promises to properly handle the purchase of the restaurant and the acquisition of the liquor license, Hernandez paid Marquez $3,000.

In reliance of Marquez’s advice, including representations that the liquor license could be  transferred from the seller, so long as Hernandez was not convicted of any crimes, Hernandez contracted with the seller to purchase the business. (Ig 7 8). The purchase was accomplished through a Stock Transfer Agreement entered into on October 2,2007, a copy of which is annexed to the proposed amended complaint. The Agreement made the obtaining of a liquor license for the Restaurant a condition of the purchase. As soon as she told Marquez that she was not convicted of any crimes, Marquez had her sign a waiver, which states in pertinent part: Parties represent and state that notwithstanding anything to the contrary in documents for the above purchase, that [Hernandez Is irrevocably purchasing said store and waives condition of approval by the State of New York Liquor Authority and Beverage Control Board, and further states that he/she is qualified
for an off-premises beer license,After signing the waiver, Hernandez paid the seller $30,000 as a down payment for the business, at which time Marquez advised Hernandez to pay for the seller’s landlord $10,000 rent arrears due and owing from the seller, and instructed Hernandez to execute a new lease with the landlord, which required $5,250 as a security deposit and as monthly rent ( 7 19). There may have been a conflict of interest that caused Marquez to have Hernandez sign the waiver, since Marquez now represents the landlord in an action to evict Hernandez from her apartment 18). If Marquez had told Hernandez the truth about the waiver, Hernandez would not have gone through with the purchase of the restaurant until she had secured a liquor license. 7 20).
However, “[s]olely due to assurances, representations, advice and direction of the Marquez,
Hernandez was caused … to close the transaction with no approval from the State Liquor
Authority.”

Due to Marquez’s misrepresentations and omissions, “includ[ing] his directing Hernandez to execute a lease and pay rent of $5,250 a month, which she paid for over a year, for a premises which she believed that she would have a restaurant and liquor license,” Hernandez suffered damages (Id, 7 27). As a result of her reliance on Marquez’s representations, Hernandez alleges that she had become indebted to the seller for $91,350,000.In addition, contrary to Marquez’s representations, the liquor license for the restaurant could not be secured.

The three year statute of limitations is mostly insurmountable.  Clients and attorneys look for ways over, around and sometimes through the principal.  Often they do not sauced.  In Sun Graphics Corp. v Levy, Davis & Maher, LLP    2012 NY Slip Op 03273   Decided on April 26, 2012   Appellate Division, First Department  we are not told the facts behind the decision, but the decision is clear.  More than three years has passed since the departure, and it is too late.
 

"Plaintiffs failed to establish that the three-year statute of limitations on their cause of action alleging legal malpractice was tolled pursuant to the continuous representation doctrine (CPLR 214[6]; see CLP Leasing Co., LP v Nessen, 12 AD3d 226 [2004]). They alleged generally that defendants continued to represent them during the three years preceding the commencement of the action, but failed to allege that that representation pertained to the specific matters at issue (see Apple Bank for Sav. v PricewaterhouseCoopers LLP, 70 AD3d 438 [2010]; Serino v Lipper, 47 AD3d 70, 76 [2007], lv dismissed 10 NY3d 930 [2008]).

The causes of action for breach of contract, breach of fiduciary duty, and negligent misrepresentation are redundant of the legal malpractice claim, since they arise from the same allegations and seek identical relief (see Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 290 AD2d 399, 400 [2002]; see also Weksler v Kane Kessler, P.C., 63 AD3d 529, 531 [2009]).

The cause of action alleging a violation of Judiciary Law § 487 fails to state a cause of action, since plaintiffs do not allege that defendants engaged in any deceptive conduct during a pending proceeding in which plaintiffs were parties (see Stanski v Ezersky, 228 AD2d 311, 313 [*2][1996], lv denied 89 NY2d 805 [1996]). "

Plaintiff sues Attorney and attorney does not answer the complaint.  Attorney then moves to vacate the default judgment that follows.  Question is whether the process server correctly served the summons and complaint.  Under NY’s complicated service rules, Supreme Court determines that service was good and the AD eventually rules that it was not good.  Read to the end to see how both sides wasted valuable time and money on this issue.

"Where, as here, a defendant moves to vacate a judgment entered upon his or her default in appearing or answering the complaint on the ground of lack of personal jurisdiction, the defendant is not required to demonstrate a reasonable excuse for the default and a potentially meritorious defense (see Harkless v Reid, 23 AD3d 622, 622-623; Steele v Hempstead Pub Taxi, 305 AD2d 401, 402). Contrary to the determination of the Supreme Court, the defendant established entitlement to relief from default on the ground that she was not properly served with the summons and complaint pursuant to CPLR 308(4). The affidavit of service of the plaintiff’s process server alleged that the process server attempted to deliver the summons and complaint to the defendant at her "dwelling house" or "usual place of abode," rather than her actual place of business, on January 19, 2009, at 7:17 P.M., January 26, 2009, at 6:51 A.M., and February 25, 2009, at 4:03 P.M. After all three unsuccessful attempts, the process server affixed a copy of the summons and complaint to the defendant’s door and mailed a copy to the same address, which was alleged to be the defendant’s "last known residence." Contrary to these averments in the affidavit of service, the defendant presented proof, inter alia, that the address where service was attempted, as alleged in the affidavit of service, was in fact her office address.

The defendant established that the plaintiff’s process server failed to exercise "due diligence" in attempting to effectuate service pursuant to CPLR 308(1) or (2) before using the "affix and mail" method pursuant to CPLR 308(4) (JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d 902, 903 [internal quotation marks omitted]; see Lombay v Padilla, 70 AD3d 1010, 1012). [*2]Due diligence was not exercised because two of the three attempts at service were at times when the defendant could not reasonably be expected to be at work, a national holiday (January 19, 2009) and at 6:51 A.M. on January 26, 2009 (see Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889; O’Connell v Post, 27 AD3d 630; Earle v Valente, 302 AD2d 353; Annis v Long, 298 AD2d 340). Furthermore, no attempt to effectuate service was made at the defendant’s actual "dwelling place or usual place of abode" (JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d at 903 [internal quotation marks omitted]; see Earle v Valente, 302 AD2d at 353), nor did the process server make genuine inquiries to ascertain the defendant’s actual residence or place of employment (see McSorley v Spear, 50 AD3d 652, 654; Estate of Edward S. Waterman v Jones, 46 AD3d 63, 66).

Under these circumstances, the service of the summons and complaint pursuant to CPLR 308(4) was defective as a matter of law (see JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d at 903; Earle v Valente, 302 AD2d at 354; Gurevitch v Goodman, 269 AD2d 355, 356). Since the Supreme Court had not acquired personal jurisdiction over the defendant, the default judgment entered against her was a nullity (see Fleisher v Kaba, 78 AD3d 1118, 1120; Steele v Hempstead Pub Taxi, 305 AD2d at 402). Accordingly, the defendant’s motion, in effect, to vacate the judgment entered upon her default and to dismiss the complaint on the ground of lack of personal jurisdiction should have been granted. "

Here is the kicker:

"We note that the action was timely commenced by filing the summons and complaint in the office of the Clerk of Kings County. Under the circumstances of this case, despite the dismissal of the complaint on the ground of lack of personal jurisdiction, the plaintiff should be permitted, if she be so advised, to re-serve the appellant within 120 days of the date of this decision and order (see CPLR 306-b; Gurevitch v Goodman, 269 AD2d at 356). "

It’s not enough to point out the mistake an attorney has made.  It’s not enough to show that your case was resolved for less than it was worth.  Even with the additional proof that the defendant was your attorney it is not enough to win a legal malpractice case.  Plaintiff must always show that "but for" the mistake of the attorney there would have been a better outcome.

In Lue v Finkelstein & Partners, LLP ; 2012 NY Slip Op 03259  Decided on April 26, 2012  Appellate Division, Third Department we see a labor law case which partially settled, and in which one defendant declared bankruptcy.  Take a look at what plaintiff had to prove to remain in the game:
 

"In January 2002, plaintiff, while working for O’Connell Electric, fell from a scissor lift at a construction work site owned by K-Mart Corporation. Defendants failed to preserve plaintiff’s Labor Law § 240 claim during K-Mart’s chapter 11 bankruptcy, resulting in the claim being reduced to zero dollars by the Bankruptcy Court in 2004. Plaintiff, represented by new counsel, subsequently commenced an action against various defendants, but his claim against K-Mart was dismissed by Supreme Court (Cannizzaro, J.) based upon the Bankruptcy Court’s order. No appeal was pursued from such dismissal.

Plaintiff eventually settled his claim against another defendant — United Rentals, Inc., the supplier of the scissor lift — for $235,000. He then brought this legal malpractice action, which was previously before us regarding a discovery dispute (67 AD3d 1187 [2009]), asserting that he would have had a larger recovery if his Labor Law § 240 strict liability claim against K-Mart had been preserved by defendants. Plaintiff moved for partial summary judgment on the [*2]issue of liability, and defendants cross-moved for summary judgment dismissing the complaint upon the ground that plaintiff could not prove that defendants’ alleged malpractice caused him any damages beyond what he had recovered from United Rentals. Supreme Court granted plaintiff’s motion and denied defendants’ cross motion. Defendants appeal, arguing that since plaintiff cannot recover any damages other than those that he has already received, his motion for partial summary judgment should have been denied and their cross motion for summary judgment should have been granted.

We find that factual issues exist in this record precluding summary judgment to either party. In a legal malpractice action, "a plaintiff must demonstrate that the 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 proximately caused [the] plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]). Defendants argue that, even if they had preserved a claim against K-Mart, funds would not have been available to collect on a favorable Labor Law § 240 cause of action because K-Mart was self-insured and the record does not establish that K-Mart was named as an additional insured on O’Connell Electric’s policy with its insurer, Interstate Insurance Group. Plaintiff counters by contending that O’Connell Electric had agreed in a written contract to indemnify K-Mart as well as name K-Mart as an additional insured, and that an avenue to O’Connell Electric’s insurer was provided by Insurance Law § 3420 and the 1978 Bankruptcy Code (see 11 USC § 524 [a], [e]).

The contract between O’Connell Electric and K-Mart had an indemnification clause [FN1] and also a clause requiring that O’Connell Electric include K-Mart as an additional insured. It is the general rule that there is no right to indemnification if the indemnitee does not sustain an actual loss (see Lang v Hanover Ins. Co., 3 NY3d 350, 354 [2004]; Jackson v Citizens Cas. Co., 277 NY 385, 389 [1938]; Bank of India v Trendi Sportswear, Inc., 2002 US Dist LEXIS 894, *10-14, 2002 WL 84631, *4-5 [SD NY 2002], affd 64 Fed Appx 827 [2d Cir 2003], cert denied 540 US 1074 [2003]). This rule had the effect of protecting an insurer from having to pay an injured party when its insured was insolvent or bankrupt. Thus, the Legislature long ago carved out an exception to the rule and "remedied this inequity by creating a limited statutory cause of action on behalf of injured parties directly against insurers" (Lang v Hanover Ins. Co., 3 NY3d at 354; see Coleman v New Amsterdam Cas. Co., 247 NY 271, 275 [1928]). This exception is authorized by the Bankruptcy Code (see 11 USC § 524 [a], [e]), and a personal injury plaintiff may pursue an action against a bankrupt defendant for the purpose of obtaining a judgment to be enforced against that defendant’s insurer (see Lang v Hanover Ins. Co., 3 NY3d at 354-355; Green v Welsh, 956 F2d 30, 35 [2d Cir 1992]; Collier On Bankruptcy P 524.05 [16th ed]). Since it is well settled that an additional insured has the same protection as a named insured (see Kassis v Ohio Cas. Ins. Co., 12 NY3d 595, 599-600 [2009]; Pecker Iron Works of N.Y. v Traveler’s Ins. Co., 99 NY2d 391, 393 [2003]), it follows that an Insurance Law § 3420 cause of action could be brought against the insurer of an additional insured. [*3]"

Here, the contract required O’Connell Electric to name K-Mart as an additional insured. However, as defendants point out, there is no proof in the record that this was actually done. Establishing that a party is an additional insured is not generally difficult (see Kassis v Ohio Cas. Ins. Co., 12 NY3d at 599-600). But, the policy is not in the record and there is not even a sworn statement from a person with actual knowledge indicating such coverage was in place [FN2]. Under such circumstances, plaintiff has failed to establish as a matter of law that a potential claim existed under Insurance Law § 3420 against Interstate Insurance Group.

In a multi-million dollar apartment building sale at 108 W. 76th Street, NYC.  Defendant attorney Marmon drafts and negotiates the contract of sale, which was executed by the sellers.  Contract says that sellers have full power and authority to sell and they expressly represented to buyers that Sharmon Marcus and Stephen Marcus held all of the shares of the corporate owner. But did they?  Apparently Stephen Marcus’ kids say no.

Kids start an action in US District Court saying that they own the building, and what’s going on?  That case is ongoing, and buyers now sue Marmon.  Some documents reveal that Mamon knew of the kids claim yet went ahead.

In Gorton v Marmon  2012 NY Slip Op 31073(U)  April 16, 2012  Supreme Court, New York County
Docket Number: 108094/11  Judge: Joan M. Kenney the question is whether this is a negligence and fraud case, or merely a legal malpractice case in disguise?

Justice Kenny recites the various standards for decisions in this area and eventually holds that this is a negligence and fraud case which can proceed. 

"In reference to plaintiffs’ negligence cause of action, moving defendant fails to refute plaintiffs’ claim on negligence, and instead argues that the negligence claim is really one for legal malpractice. I-Having failed to address the negligence claim at all, defendant is not entitled to its
dismissal. Moreover, plaintiffs deny that they are alleging any legal malpractice claims against
defendant and admit that he was not their attorney at the closing of the sale of this property in
question. Plaintiffs specified the elements of a claim of fraud in the pleadings and therefore the claim cannot be dismissed pursuant to CPLR 3211 (a)(7). Specifically, plaintiffs allege that Mr. Marmon misrepresented the fact that the sellers had the legal right to transfer the property; he knowingly did so, due to his access to all of the Reyrnar records; plaintiffs relied on this representation, made the purchase and are now claiming damages as a result of Mr. Marmon’s purported fraud. The fraud claim is also not barred by the statute of limitations. While the interposition date of July 14, 201 1 is beyond 6 years from the June 30, 2005 sale of the property, plaintiffs assert that they did not discover the fraud until September 2009 when they were served with the pleadings in the Federal  Court action and therefore the 2-years-from-discovery rule is applicable, arid the claim of fraud, timely.

Plaintiffs’ contribution claim is not premature. Plaintiffs have a possibility of losing the
property in the Federal Court Action, having the sale of the property rescinded and losing the $4.8
million apartment. As per* the “critical requirement” of CPLR Article 14, such a claim may be
made before the potential judgment in the Federal Court Action. Moreover, plaintiff‘s have stated a
cause or action for indemnification and at this juncture it is premature to dismiss this cause of
action altogether.

Global Bus. Inst. v Rivkin Radler, LLP ;2012 NY Slip Op 31057(U); April 16, 2012; Supreme Court, New York County ;Docket Number: 104918/06 ;Judge: Doris Ling-Cohan is a textbook decision on when and how summary judgment is applied in Legal Malpractice.  Case is simple.  Plaintiff hired Rivkin Radler to negotiate a real estate lease.  There was a long delay before plaintiff could take possession, and during that time the RE taxes escalated.  Plaintiff argued that the lease should have limited the start of the escalation period to when plaintiff got possession.  It did not.  May RR get summary judgment?

"Rivkin Radler next argues that both Global’s “substantial completion/lost profit/consequential damages claims and tax escalation claims are substantively insufficient as a matter of law,” and should be dismissed on that ground. See Defendant’s Memorandum of Law, at 5-17. Global responds that there are issues of fact as to each element of its claims that preclude summary judgment and dismissal at this juncture. See Plaintiffs Memorandum of Law, at 15-23. After careful consideration, the court finds for Global.

In Leder v Spiegel(31 AD3d 246,267 [ 1” Dept 2006 the Appellate Division, First Department, noted that “[in order to state a cause of action for legal malpractice, the complaint must set forth three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages.” Further, with respect to the element of proximate cause, the First Department noted in Fletcher v Boies, Schiller h Flexner, LLP (75 AD3d 469,469 [1st Dept 2010) that a plaintiff must demonstrate that “but for defendants’ malpractice in failing to advise her properly, she ‘would have avoided some actual ascertainable damage,’ including sufficient detail as to the ‘nature of the underlying claim .

Rivkin Radler next argues that the element of attorney negligence was not present with respect to those claims because it did not depart “from generally accepted standards of practice” during the negotiation of the lease. See Defendant’s Memorandum of Law, at 8-9. Rivkin Radler supports this argument with an affidavit from one Lloyd Shor (Shor), who is described as a “commercial leasing expert.” See Shor Reply Affidavit, f 10. Global replies that Rivkin Radler did breach its duties to Global by departing from generally accepted standards of lease negotiating practice, and has presented affidavits from “damages expert” Morton Cohen (Cohen) and attorney Martin Stein (Stein) to support its allegations. See Plaintiff‘s Memorandum of Law, at 16-1 7; Cohen and Stein Affidavits in Opposition. Without delving into the merits at this juncture, the court merely concludes that the competing experts affidavits indicate the existence of an issue of fact as to whether Rivkin Radler was negligent during the lease negotiations, and that that issue precludes any grant of summary judgment. Therefore, for the purposes of this motion, the court rejects Rivkin Radler’s claim of no negligence.

Finally, with respect to Global’s substantial completion/lost profit/consequential damages claims, Rivkin Radler argues that the damages element is insufficient because it is based on speculation. See Defendant’s Memorandum of Law, at 9- 1 1. Global responds that either lost profits or  consequential damages are capable of being measured via formulae discussed by its experts in their affidavits. See Plaintiffs Memorandum of Law, at 2 1-23. “The damages claimed in a legal malpractice action must be ‘actual and ascertainable’ resulting from the proximate cause of the attorney’s negligence [internal citation omitted].” Zarin v Reid & Priest, 184 AD2d 385,387-388 (1“ Dept 1992). The court agrees that lost profits and consequential damages as a result of an almost four-year delay in being able to enter the lease premises are the sorts of damages that are susceptible of calculation. "

In Crawford v Himmelstein ; 2011 NY Slip Op 31669(U);  Supreme Court, New York County; Docket Number: 115432/10; Judge: Donna M. Mills we see a straightforward analysis of a typical legal malpractice case. Client is being pursued by landlord to give up three apartments, on the basis of owner-personal use. (Put aside why a rent stabilized tenant could have three apartments?). Case is litigated, and plaintiff eventually settles for $ 300,000 and one year grace period. At the end of the grace period, tenant does not want to move out, and eventually sues attorney for malpractice. Plaintiff loses.

"To prevail in a legal malpractice action, a plaintiff must show that the attorney “failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community” (Volpe v Canfield, 237 AD2d 282,283 that such negligence was the proximate cause of their damages, and that, but for the attorney’s negligence, the plaintiff would have prevailed oh the underlying claim (see Rau v , Borenkoff, 262 AD2d 388.

Here, the plaintiff claims that Himmelstein failed to file a motion for summary judgment or proceed to trial on the issue of the owner landlord’s immigration status relating to the underlying holdover proceeding. In addition to the immigration issue, plaintiff claims there were a number of real estate irregularities surrounding the way the house was sold which was never explored sufficiently by Himmelstien. However, Himmelstein submitted documentary evidence establishing that between May 2004 and November 2007, the parties engaged in lengthy motion practice which involved significant discovery battles. It is quite apparent that Himmelstien was litigating vigorously on plaintiffs behalf before the parties decided to settle. Plaintiff has failed to demonstrate a meritorious cause of action for legal malpractice (Tortorello v Carlin, 286 AD2d 628 [2001]), there being insufficient evidence that “but for” defendants’ alleged negligence in not filing a motion for summary judgment or going to trial in lieu of settling the underlying action, plaintiff would have achieved a more favorable result (Wexler v Shea & Gould, 1 1 AD2d 450 . The record establishes that the parties with the assistance of the court in the underlying action, voluntarily decided to settle the matter instead of proceeding to trial. Moreover, Himmelstein offers a reasonable strategy as to why they did not make a motion for summary judgment. Attorneys are free to select among reasonable courses of action in prosecuting clients’ cases without thereby exposing themselves to liability for malpractice (Dweck Law Firm v Mann, 283 AD2d 292, 293 [2001])."
 

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. "