Thursday Attorney Malpractice Update 4/17/08
Posted: April 17th, 2008
By: Andrew Bluestone, Esq.
Category: Attorney Malpractice, The News Beat

CASES THIS WEEK IN LEGAL MALPRACTICE

Jusuf Becovic, et al., Plaintiffs-Respondents-Appellants, v Poisson & Hackett, et al., Defendants-Appellants-Respondents.

3142, 118056/04

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

2008 NY Slip Op 2644; 2008 N.Y. App. Div. LEXIS 2594

March 20, 2008, Decided
March 20, 2008, Entered

Plaintiffs were physically injured, and the placement and maintenance of a garage sign was an important element of the personal injury case.  They lost and sued the attorneys.  The legal malpractice case was dismissed on summary judgment.  Note the parting comment on discovery.

“In this legal malpractice action, plaintiffs are unable to demonstrate that they would have succeeded in the underlying personal injury action "but for" defendants' conduct (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434, 866 N.E.2d 1033, 834 N.Y.S.2d 705 [2007]). Contrary to the motion court's conclusion, plaintiffs cannot show that the defendants in the underlying action created the allegedly dangerous condition by an affirmative act of misfeasance (see Mercer v City of New York, 88 NY2d 955, 670 N.E.2d 443, 647 N.Y.S.2d 159 [1996]; Kelly v Berberich, 36 AD3d 475, 476-477, 828 N.Y.S.2d 332 [2007]),  [**2] and the claim that said defendants failed to maintain the garage sign that was purportedly the instrumentality that resulted in the injury is not sufficient for this purpose. Plaintiffs also failed to raise an issue of fact regarding notice of the condition, since their sole opposition was hearsay (see Wertheimer v New York Prop. Ins. Underwriting Assn., 85 AD2d 540, 541, 444 N.Y.S.2d 668 [1981]). In view of the dismissal of the instant action, we need not address the arguments on plaintiffs' cross appeal for spoliation sanctions. We note, however, that plaintiffs' position is lacking given the long period of inaction  [*2]  by their attorneys in this action in failing to avail themselves of the opportunity to seek third-party discovery.”

Naida I. Velazquez, etc., appellant, v Bruno Decaudin, et al., defendants, Arnold Streisfeld, etc., et al., respondents. (Index No. 3191/06)

2006-10455, 2007-05614

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2008 NY Slip Op 2575; 2008 N.Y. App. Div. LEXIS 2514

March 18, 2008, Decided

As the Appellate Division notes, this is a strange and disturbing real estate deal for the beneficiaries of their mother’s estate.

“The complaint alleges, insofar as is relevant here, that Jose, believing, on the basis of misrepresentations by certain of the defendants, that he was refinancing to save his mother's property from foreclosure, entered into a contract to convey the property to Decaudin for $ 390,000. The property allegedly was worth $ 600,000 at the time. When the closing was scheduled, Jose  [**5] allegedly was advised that only he had to attend the closing, but that he should bring with him his mother's social security card and driver's license. At the closing he allegedly was introduced to Streisfeld, and was told that Streisfeld was his attorney.

 [*3]  The complaint alleges that, prior to the closing, Streisfeld had been provided with a copy of the power of attorney by which Jose was purporting to act in connection with the closing. The power of attorney, which had been executed by Jose's mother, appointed Jose and his sister, the plaintiff, Naida I. Velazquez, acting jointly, as attorneys-in-fact for their mother. Despite the requirement that Jose and the plaintiff act together, however, the complaint alleges that Jose acted alone in connection with the conveyance of the property and that the plaintiff was unaware of his actions in that regard.

According to the complaint, the closing proceeded only after a lengthy meeting, from which Jose was excluded, between Streisfeld, the representative of the defendant Old Town Abstract Company, LLC (hereinafter Old Town), which was the agent of UGT, and the mortgage brokers, financial advisors, and other attorneys involved in the transaction.  [**6] When the closing did proceed, Jose was taken into a room separate from the other participants, where he was advised that he was required to execute a deed, as well as a use and occupancy agreement and an option to purchase agreement. The use and occupancy agreement provided that Jose, who resided elsewhere, could continue to reside in the premises for a period of 12 months as long as he paid Decaudin's mortgage payments in a timely fashion during that period. The option-to-purchase agreement provided that as long as he did not default in his obligations under the use and occupancy agreement, Jose could purchase the property during that year for $ 370,500, which was the total amount of the two mortgages that Decaudin executed in favor of the defendant Sunset Mortgage Company at the closing.

The complaint further alleges that, at the closing, Jose, Decaudin, Streisfeld, and the attorney for the lender executed an escrow agreement, pursuant to which no funds were to be disbursed, no documents were to be recorded, and no title insurance was to be issued until an original power of attorney in favor of Jose had been delivered to Old Town. The escrow agreement further provided that if the  [**7] power of attorney were not delivered, the closing documents were to be returned to the respective parties. The complaint alleges that even though the power of attorney was never delivered to Old Town, the funds were disbursed and the closing documents were not returned, but were recorded, and UGT issued a policy of title insurance. The complaint alleges that the closing documents reflect that Decaudin paid approximately $ 295,000 to satisfy the outstanding mortgage indebtedness on the property and that the remaining $ 95,000 that had been borrowed from Sunset was disbursed to the defendants, rather than to the owner of the property, the plaintiff's decedent.

Several months later, Jose defaulted in his obligations under the use and occupancy agreement that was executed at closing and DeCaudin initiated a summary dispossess proceeding, in which he was represented by the defendants Ira S. Clair, an attorney, and Clair and Gjertsen (hereinafter collectively Clair). The proceeding resulted in the issuance of a judgment in favor of Decaudin and a warrant of eviction. The complaint alleges that in a motion to vacate the judgment and warrant, Clair was made aware of the alleged defect in Decaudin's  [**8] title but negligently failed to examine the relevant documents or do anything else to ascertain the true state of Decaudin's title.”

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