Defendant moving to dismiss an action must prove the merits of its case

Bakcheva v Law Offices of Stein & Assoc., 2019 NY Slip Op 00844 [2d Dept Feb. 6, 2019] is a good reminder that a defendant moving to dismiss an action must prove the merits of its case. The court held:

A plaintiff seeking to recover damages for legal malpractice must prove 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 breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714; Biberaj v. Acocella, 120 A.D.3d 1285, 1286, 993 N.Y.S.2d 64). A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages (see Iannucci v. Kucker & Bruh, LLP, 161 A.D.3d 959, 960, 77 N.Y.S.3d 118; Betz v. Blatt, 160 A.D.3d 696, 698, 74 N.Y.S.3d 75). The defendant must affirmatively demonstrate the merits of a defense, rather than merely pointing out gaps in the plaintiff’s proof (see Iannucci v. Kucker & Bruh, LLP, 161 A.D.3d at 960, 77 N.Y.S.3d 118).

We agree with the Supreme Court that the defendants were not entitled to summary judgment dismissing the legal malpractice cause of action. Although the defendants established their prima facie entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact in opposition. Specifically, the plaintiff submitted evidence that she had informed the defendants, prior to the closing, that the main portion of the apartment was on the seventh floor of the building and that the apartment included a second level. According to the plaintiff, the defendants committed malpractice because they failed to recognize the illegality of the second level, since neither the certificate of occupancy nor the approved condominium offering plan authorized the existence of an eighth floor to the condominium.

R. A. Klass
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Outlining the scope of an attorney’s retainer agreement is important.

Outlining the scope of an attorney’s retainer agreement is important. This sets forth the nature of the work to be rendered by an attorney on behalf of his client. In Attallah v Milbank, Tweed, Hadley & McCloy, LLP, 2019 NY Slip Op 00583 [2d Dept Jan. 30, 2019], the court held:

An attorney may not be held liable for failing to act outside the scope of a retainer (see AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 834 N.Y.S.2d 705, 866 N.E.2d 1033). Therefore, since the defendant’s alleged failure to negotiate with the school, its alleged failure to commence litigation against the school, and its alleged failure to properly advise the plaintiff on the efficacy of a defamation action against nonschool parties fell outside the scope of the parties’ letter of engagement, dismissal of the cause of action alleging legal malpractice was warranted, pursuant to CPLR 3211(a)(1), on documentary evidence grounds.

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Appellate court reversed the court order dismissing the action on the law firm’s motion to dismiss.

In an action by a client against a law firm for legal malpractice, the appellate court reversed the court order dismissing the action on the law firm’s motion to dismiss. The court held:

“ To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages ” (Dempster v. Liotti, 86 A.D.3d 169, 176, 924 N.Y.S.2d 484 [internal quotation marks omitted]; see Leder v. Spiegel, 9 N.Y.3d 836, 837, 840 N.Y.S.2d 888, 872 N.E.2d 1194). Here, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the plaintiff stated a cause of action to recover damages for legal malpractice (see Tooma v. Grossbarth, 121 A.D.3d at 1095–1096, 995 N.Y.S.2d 593; Endless Ocean, LLC v. Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 A.D.3d 587, 589, 979 N.Y.S.2d 84; Reynolds v. Picciano, 29 A.D.2d 1012, 1012, 289 N.Y.S.2d 436). The evidentiary submissions did not establish that a material fact alleged in the complaint is not a fact at all and that no significant dispute exists regarding it (see Bodden v. Kean, 86 A.D.3d at 526, 927 N.Y.S.2d 137). Contrary to the defendants’ contention, the plaintiff was entitled to commence this legal malpractice action even though the underlying personal injury action was still pending, as the legal malpractice action accrued, at the latest, in November 2014 (see Johnston v. Raskin, 193 A.D.2d 786, 787, 598 N.Y.S.2d 272).

Lopez v Lozner & Mastropietro, P.C., 166 AD3d 871 [2d Dept 2018]

 

R. A. Klass
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The court reporting agency is in the business of making stenographic records…

Stenotype machine illustrating article by Richard A. Klass, Esq. about  Stenographic (court reporting) Services

The court reporting agency is in the business of making stenographic records of depositions and proceedings in litigation. A law firm ordered the services of the court reporting agency’s stenographers to take down witnesses’ testimony in various personal injury and medical malpractice cases.

The law firm broke up and its partners agreed to close their firm, discharge its liabilities and settle all accounts. In their settlement of their dissolution, the partners agreed to remain liable for all debts, liabilities and other obligations of the firm; reimburse disbursements and expenses incurred by the firm; and be personally responsible for an obligation of the firm.

Unfortunately, the court reporting agency had not been paid for services rendered in some of the cases previously handled by the law firm. The agency retained Richard A. Klass, Your Court Street Lawyer, to collect on the unpaid invoices.

Attorneys Are Responsible for Stenographic Services:

At one time, there was a difference of opinion as to whether an attorney who orders a court reporter to record testimony at a deposition is liable for the charge. Some court decisions held that the attorney was merely an agent of a disclosed principal (client) and was not responsible and the client was liable to pay the bill. Other court decisions recognized that the attorney was the one ordering the services and the client had little to nothing to do with the decision, and it put a great burden on the court reporting company to pursue its bill against an unknown client. Ultimately, the New York State legislature resolved the matter by enacting a special law to cover payment of these charges.

According to General Business Law Section 399-cc, an attorney who orders or requests stenographic services is responsible to pay for such services:

Notwithstanding any other provision of law to the contrary, when an attorney of record orders or requests either orally or in writing that a stenographic record be made of any judicial proceeding, deposition, statement or interview of a party in a proceeding or of a witness related to such proceeding, it shall be the responsibility of such attorney to pay for the services and the costs of such record except where:

1. payment is otherwise provided by law or where the attorney is providing representation through a not-for-profit provider of criminal or civil legal services; or

2. the attorney expressly disclaims responsibility for payment of the stenographic service or record in writing at the time the attorney orders or requests that the record be made.

Based upon the above statute, the law firm could be held liable for the bill. However, knowing that the law firm was dissolved, it was crucial to collection to also sue the individual former partners.

Certification of Expenses in Personal Injury Cases:

By court rule, when a personal injury and medical malpractice action settles, the attorney must file an Office of Court Administration (“OCA”) Closing Statement, wherein he certify the expenses paid on behalf of his client. See, NY R A DIV 2 DEPT Section 691.20 (“13. Itemized statement of the amounts of expenses and disbursements paid or agreed to be paid to others for expert testimony, investigative or other services properly chargeable to the recovery of damages together with the name, address and reason for each payment”).

On a settled case, the court rule further creates a special account in which the moneys are to be held pending payment of the disbursements. See, NY R A DIV 2 DEPT Section 691.20(d) “Deposit of Collections; Notice. (1) Whenever an attorney, who has accepted a retainer or entered into an agreement as above referred to, shall collect any sum of money upon any such action, claim or proceeding, either by way of settlement or after a trial or hearing, he shall forthwith deposit the same in a special account in accordance with the provisions of Rule 1.15 of the Rules of Professional Conduct. Within 15 days after the receipt of any such sums he shall cause to be delivered personally to such client or sent by registered or certified mail, addressed to such client at the client’s last known address, a copy of the closing statement required by this section. At the same time the attorney shall pay or remit to the client the amount shown by such statement to be due the client, and he may then withdraw for himself the amount so claimed to be due him for compensation and disbursements.”

Discovery of OCA Closing Statements Sought:

It was alleged that the law firm previously settled some of the cases in which payment for the court reporting services was sought. Therefore, a lien existed upon any settlements to the extent that the bills were unpaid and enforcement could be pursued against the individuals. In responding to the individual attorneys’ motions to dismiss the lawsuit against them, it was urged that discovery be had in the collection case in order to seek the production of the OCA Closing Statements in those settled cases to ascertain whether the attorneys stated in them that all expenses of litigation, including the court reporting company’s bills, were paid. See, Cantor v Levine, 115 AD2d 453, 453 [2d Dept 1985] (“When knowledge of facts is necessary for a party to properly oppose a motion to dismiss, and those facts are within the sole knowledge or possession of the movant, discovery is sanctioned if it has been demonstrated that such facts may exist (CPLR 3211[d]; Cosmos Mason Supplies v. Lido Beach Assoc., 95 A.D.2d 818, 464 N.Y.S.2d 12).”).

Confronted with the opposition to their motions to dismiss, the former law firm and its individual partners agreed to settle the lawsuit and enter into an agreement to pay the court reporting agency for services rendered.

R. A. Klass
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…client’s allegations were previously addressed in a prior matter.

In Knox v Aronson, Mayefsky & Sloan, LLP, 2018 NY Slip Op 09030 [1st Dept Dec. 27, 2018], the court dismissed a legal malpractice case where the client’s allegations were previously addressed in a prior matter.  The court held:

Supreme Court properly dismissed plaintiff’s complaint as against FBK, since the only claim asserted, a legal malpractice claim, is barred by the doctrine of res judicata (see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005] ).  Plaintiff’s legal malpractice claim is based on the same conduct that was the basis of the counterclaim previously dismissed by Supreme Court Westchester County.  Res judicata bars all claims “ arising out of the same transaction or series of transactions … even if based upon different theories or if seeking a different remedy ” (Jumax Assoc. v. 350 Cabrini Owners Corp., 110 A.D.3d 622, 623, 973 N.Y.S.2d 631 [1st Dept. 2013] [internal quotation marks omitted], lv denied 23 N.Y.3d 907, 2014 WL 2922240 [2014]).  Contrary to plaintiff’s contention, the dismissal in the Westchester action was on the merits.  The order addressed the merits of the counterclaim, dismissing it on the basis of the settlement and the custody decision in the matrimonial action (see Plaza PH2001 LLC v. Plaza Residential Owner LP, 98 A.D.3d 89, 98, 947 N.Y.S.2d 498 [1st Dept. 2012] ).

R. A. Klass
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Client alleged attorney failed to provide legal advice … immigration consequences

The First Department kept a legal malpractice case alive and partially denied the attorney’s motion to dismiss action, where the client alleged that the attorney failed to provide legal advice. In Sehgal v DiRaimondo, 165 AD3d 435, 436-37 [1st Dept 2018], the court held:

We affirm dismissal of part of the malpractice claim on alternative grounds. Plaintiff’s claim that he pleaded guilty to criminal charges in reliance on defendants’ negligent legal advice concerning the immigration consequences of the plea is barred by his guilty plea and lack of any claim of innocence (Carmel v. Lunney, 70 N.Y.2d 169, 173, 518 N.Y.S.2d 605, 511 N.E.2d 1126 [1987]; Yong Wong Park v. Wolff & Samson, P.C., 56 A.D.3d 351, 867 N.Y.S.2d 424 [1st Dept. 2008], lv denied 12 N.Y.3d 704, 876 N.Y.S.2d 705, 904 N.E.2d 842 [2009] ). However, the policy underlying the rule established in Carmel v. Lunney, supra, does not require dismissal of the entirety of plaintiff’s legal malpractice claim, because the remainder of his claim that defendants failed to advise him of the potential immigration consequences of traveling outside the United States as a result of entering a guilty plea does not dispute the validity of his conviction (see generally Carmel v. Lunney, supra; see also Bass & Ullman v. Chanes, 185 A.D.2d 750, 586 N.Y.S.2d 610 [1st Dept. 1992] ). Further, plaintiff’s allegations that he relied on defendants’ faulty legal advice concerning the immigration consequences of his guilty plea in deciding to travel abroad after he pled guilty, resulting in his being detained and subjected to removal proceedings, state a valid cause of action for legal malpractice. Defendants’ other arguments present disputed factual issues concerning the standard of care and proximate cause that are not properly resolved on a motion to dismiss the complaint (see Urias v. Daniel P. Buttafuoco & Assoc., PLLC, 120 A.D.3d 1339, 1343, 992 N.Y.S.2d 552 [2d Dept. 2014] ).

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Second Department reiterated general rule on a pre-answer motion to dismiss that letters and emails are generally not considered documentary evidence within the meaning of CPLR 3211(a)(1)

The Second Department reiterated the general rule on a pre-answer motion to dismiss that letters and emails are generally not considered documentary evidence within the meaning of CPLR 3211(a)(1). In First Choice Plumbing Corp. v Miller Law Offices, PLLC, 164 AD3d 756 [2d Dept 2018], the court held:

The plaintiffs First Choice Plumbing Corp. (hereinafter First Choice) and Malacy Plumbing Supply, Inc. (hereinafter Malacy), commenced this action to recover damages for legal malpractice against the defendant Miller Law Offices, PLLC, for its alleged negligence concerning two mechanic’s liens. The complaint alleges that the plaintiffs failed to receive full payment for plumbing services and supplies they provided on a construction project, and that the plaintiffs each filed a mechanic’s lien to recover the monies owed. The complaint further alleges that the liens were extended once, but subsequently lapsed and were extinguished by operation of law, due to the defendant’s negligence.

The defendant made a pre-answer motion to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7). The defendant argued, among other things, that no attorney-client relationship existed with respect to the mechanic’s liens. In support of that contention, the defendant submitted copies of the lien extensions, which were filed by nonparty Speedy Lien; a copy of a contract between First Choice and nonparty Construction Lien Consultants, LLC, to investigate, recover, and/or settle the debts owed to First Choice, as reflected in one of the mechanic’s liens; and emails and a letter. In the order appealed from, the Supreme Court found *173 that the defendant submitted documentary evidence which utterly refuted the plaintiffs’ allegation that there was an attorney-client relationship between them and the defendant with respect to the liens and their extensions. Accordingly, the court granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that no attorney-client relationship existed, and denied, in effect, as academic, the remaining branches of the defendant’s motion. The plaintiffs appeal.

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511). “In order for evidence to qualify as ‘documentary,’ it must be unambiguous, authentic, and undeniable” (Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 996–997, 913 N.Y.S.2d 668; see Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569). “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Fontanetta v. John Doe 1, 73 A.D.3d at 84–85, 898 N.Y.S.2d 569 [internal quotation marks omitted] ). “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” (25–01 Newkirk Ave., LLC v. Everest Natl. Ins. Co., 127 A.D.3d 850, 851, 7 N.Y.S.3d 325; see Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807, 60 N.Y.S.3d 67; Prott v. Lewin & Baglio, LLP, 150 A.D.3d 908, 909, 55 N.Y.S.3d 98; Gawrych v. Astoria Fed. Sav. & Loan, 148 A.D.3d 681, 682, 48 N.Y.S.3d 450).

Here, the emails and letters submitted in support of the defendant’s motion were not documentary evidence within the meaning of CPLR 3211(a)(1). To the extent that the other evidence submitted was documentary, that evidence did not conclusively establish the absence of an attorney-client relationship between the plaintiffs and the defendant with respect to the liens and their extensions. Thus, the Supreme Court should not have granted that branch of the defendant’s motion which was to dismiss the complaint on this ground.

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What’s Yours Is Mine and What’s Mine Is Yours: Tenancy by the Entirety

Gray-haired couple in embrace illustrating article by Richard Klass Esq. about Tenancy by the Entirety

He owned his own house. When Harald married Florence a year later, he transferred title to the house from himself to “Harald and Florence, his wife.” By virtue of this language in the deed, ownership of the house was now held in a “ tenancy by the entirety ” (see, Estates, Powers & Trusts Law Section 6-2.2). After many years of marriage, Florence passed away, leaving Harald as the surviving spouse of the former tenancy by the entirety and sole owner of the house by operation of law. Subsequently, Harald transferred title to the house to his nieces.

Executor of Estate of Deceased Wife Sues

Florence’s executor brought a lawsuit against Harald and his two nieces to claim Florence’s share in the house as part of her estate. The executor demanded that the house be returned to Florence’s estate for disposition according to her Will. In response, Harald and his nieces filed motions to dismiss the lawsuit based upon documentary evidence.

Dismissal Based upon Documentary Evidence

Richard A. Klass, Esq., Your Court Street Lawyer, filed the motion to dismiss based upon documentary evidence. CPLR 3211(a)(1) provides that dismissal of a lawsuit is appropriate when the document itself resolves all factual issues as a matter of law. In order to be considered documentary evidence under CPLR 3211(a)(1), the evidence “must be unambiguous and of undisputed authenticity.” Rabos v. R&R Bagels & Bakery, Inc., 100 AD3d 849 [2012]; Fontanetta v. John Doe, 73 AD3d 78 [2010]. In considering such a motion, the court is to afford the complaint its most favorable intendment and the plaintiff’s allegations which are contrary to the documentary evidence are to be accepted. However, “a complaint containing factual claims that are flatly contradicted by documentary evidence should be dismissed.” See, Well v. Rambam, 300 AD2d 580 [2002].

Tenancy by the Entirety Deed

Quoting from an 1883 decision from the NYS Court of Appeals, a “ tenancy by the entirety ” is derived from the common law (“when land was conveyed to husband and wife, they did not take as tenants in common or as joint tenants but each became seized of the entirety, and upon the death of either the whole survived to the other.”) On the death of either spouse, the property’s title vested in the other spouse because the survivor is deemed the representative of the single ownership. Indeed, the surviving spouse receives the entire property interest free and clear of any debts, claims, liens or encumbrances against the deceased spouse. See, Cormack v. Burks, 150 AD3d 1198 [2017].

Longstanding New York State law holds that a grant of real property to a husband and wife creates a tenancy by the entirety “unless expressly declared to be a joint tenancy or tenancy in common.” See, Prario v. Novo, 168 Misc.2d 610 [Sup. Ct., Westchester Co. 1996]; In re Faeth’s Will, 200 Misc. 143 [Sur. Ct., Queens Co. 1951]; Estates, Powers & Trusts Law § 6-2.2(b). Courts have recognized that a tenancy by the entirety cannot be altered without the mutual consent of the spouses or divorce. In Sciacca v. Sciacca, 185 Misc.2d 105 [Sup. Ct. Queens Co. 2000], the court held that: “As articulated by the Court of Appeals in Kahn v. Kahn, 43 N.Y.2d 203, a court cannot direct the disposition of property held by married couples as tenants by the entirety until the court first alters the marital status, such as by entering a judgment of divorce or separation. Indeed, the law is long-settled that neither entirety tenant may, without the consent of the other, dispose of any part of the property to defeat the right of survivorship.”

That the executor was pursuing rights on behalf of Florence’s estate was irrelevant. Numerous cases have held that, regardless of any purported disposition of real property owned by spouses as tenants by the entirety, the surviving spouse takes the whole by operation of law. See, e.g. Levenson v Levenson, 229 AD 402 [2d Dept 1930] (“A question of property held jointly was not involved. Naturally, the survivor took that regardless of the will.”); In re Maguire’s Estate, 251 AD 337 [2d Dept 1937], affd sub nom, 277 NY 527 [1938] (“In an estate by the entirety the husband and wife are each seized of the entire estate, per tout et non per my. Each owns, not an undivided part, but the whole estate. ‘The survivor, upon the death of the other, does not take a new acquisition, but holds under the original grant or devise, the estate being merely freed from participation by the other.”)

At the time of Florence’s death, she and Harald were still married. There was also no evidence that they altered their tenancy by the entirety either by judicial decree (such as a divorce judgment) or written instrument satisfying General Obligations Law Section 3-309. Therefore, the Deed itself was dispositive of the issue of ownership of the house vesting solely into Harald as the surviving spouse.

Foreign Affidavit Properly Accepted by Court

In support of the motion to dismiss the lawsuit, Harald submitted his affidavit signed by him in Jamaica, his new home country. The executor took issue with the court accepting the affidavit without it having been executed before a Notary Public. In rejecting this argument, the court noted that Harald’s affidavit was signed in accordance with the rule set forth in CPLR 2106(b) (“The statement of any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

I affirm this … day of ……, …., under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.”)

Based upon the above long-standing case law, the court determined that there was no valid cause of action against the defendants. In making that determination, the court cited to the rule that “the sole criterion is whether the pleading states a cause of action, and if from the four corners factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion to dismiss will fail… However, allegations constituting bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such considerations.”

copyr. 2018 Richard A. Klass
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…plaintiff could not establish liability because he could not prove the underlying action.

In Blair v Loduca, 164 AD3d 637, 638-40 [2d Dept 2018], the Second Department considered the argument made by the defendant-attorney sued for legal malpractice that the plaintiff could not establish liability because he could not prove the underlying action.

“ To establish the required element of causation in a legal malpractice action, ‘ a plaintiff must show that he or she would have prevailed in the underlying action … but for the lawyer’s negligence ’ ” (Balan v. Rooney, 152 A.D.3d 733, 733, 61 N.Y.S.3d 29, quoting Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; see Detoni v. McMinkens, 147 A.D.3d 1018, 48 N.Y.S.3d 208). The only issue raised in the defendants’ motion for summary judgment was whether the plaintiff could have prevailed in the underlying action against the property owner.

In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly *639 dangerous or defective condition nor had actual or constructive notice of its existence (see Martino v. Patmar Props., Inc., 123 A.D.3d 890, 890, 999 N.Y.S.2d 449; Kruger v. Donzelli Realty Corp., 111 A.D.3d 897, 975 N.Y.S.2d 689; Smith v. Christ’s First Presbyt. Church of Hempstead, 93 A.D.3d 839, 941 N.Y.S.2d 211; Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 925 N.Y.S.2d 607). “ Under the so-called ‘ storm in progress ’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm ” (Marchese v. Skenderi, 51 A.D.3d 642, 642, 856 N.Y.S.2d 680; see Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748; Dumela–Felix v. FGP W. St., LLC, 135 A.D.3d 809, 810, 22 N.Y.S.3d 896; McCurdy v. Kyma Holdings, LLC, 109 A.D.3d 799, 799, 971 N.Y.S.2d 137; Smith v. Christ’s First Presbyt. Church of Hempstead, 93 A.D.3d 839, 840, 941 N.Y.S.2d 211; Weller v. Paul, 91 A.D.3d 945, 947, 938 N.Y.S.2d 152; Mazzella v. City of New York, 72 A.D.3d 755, 756, 899 N.Y.S.2d 291). If a storm is ongoing, and a property owner elects to remove snow, the owner must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm (see Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d 1177, 944 N.Y.S.2d 640; Petrocelli v. Marrelli Dev. Corp., 31 A.D.3d 623, 817 N.Y.S.2d 913; Salvanti v. Sunset Indus. Park Assoc., 27 A.D.3d 546, 813 N.Y.S.2d 110; Chaudhry v. East Buffet & Rest., 24 A.D.3d 493, 808 N.Y.S.2d 239). In such an instance, that property owner, if moving for summary judgment in a slip-and-fall case, must demonstrate in support of his or her motion that the snow removal efforts he or she undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall (see Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d at 1177, 944 N.Y.S.2d 640).

In support of their motion for summary judgment dismissing the complaint in this action, the defendants submitted the plaintiff’s deposition testimony, the deposition testimony of the building’s doorman, the affidavit of a meteorologist, and certified climatological data. These submissions demonstrated that a storm was in progress at the time of the accident, that there was no preexisting ice on the ground when the storm commenced, and that the property owner did not create or exacerbate the allegedly dangerous condition created by the storm in progress (see Aronov v. St. Vincent’s Hous. Dev. Fund Co., Inc., 145 A.D.3d 648, 649, 43 N.Y.S.3d 99; **135 Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d at 1177, 944 N.Y.S.2d 640; Ali v. Village of Pleasantville, 95 A.D.3d 796, 797, 943 N.Y.S.2d 582). Since the defendants made a prima facie showing that the storm in progress rule applied *640 to the underlying action, the burden shifted to the plaintiff to show that something other than the precipitation from the storm in progress caused the accident (see Baker v. St. Christopher’s Inn, Inc., 138 A.D.3d 652, 653, 29 N.Y.S.3d 439; Burniston v. Ranric Enters. Corp., 134 A.D.3d 973, 974, 21 N.Y.S.3d 694; Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 877–878, 925 N.Y.S.2d 607; Alers v. La Bonne Vie Org., 54 A.D.3d 698, 699, 863 N.Y.S.2d 750). The plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint because the plaintiff could not have prevailed in the underlying action against the property owner (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Balan v. Rooney, 152 A.D.3d at 733, 61 N.Y.S.3d 29; Detoni v. McMinkens, 147 A.D.3d at 1018, 48 N.Y.S.3d 208).

R. A. Klass
Your Court Street Lawyer

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Ready, Willing and Able

I’m ready, willing and able / And honey, now it’s up to you.
So lay your cards on the table / And tell me what you plan to do.
– Doris Day

 

The owner of a 4-family house was ready to make a quick sale for $1.5 million. The buyer agreed to enter into a contract of sale for the house in “as is” condition in an all-cash deal to close seven days after signing the contract. Right before the closing, however, a dispute arose between the parties regarding the actual closing date. The seller attempted many times to close title, including sending several “time of the essence” notices to set a firm closing date. Each time, the buyer’s attorney responded that it could not close on the date but proposed an alternate closing date.

Alleged Title Issues

More than one month after the closing should have taken place, the buyer finally provided a title report to the seller. In the title report, it was revealed that there were five (albeit small) NYC Housing Preservation & Development (HPD) violations against the house. The buyer claimed that those HPD violations were impediments to closing and ultimately violated the terms of the contract of sale if not resolved.

Based upon the buyer’s course of conduct in delaying the closing date and raising minor title exceptions, the seller decided to declare the buyer in material default under the contract and presented notice that the $152,000 down payment being held in escrow would be forfeited unless the closing took place in 10 days.

Lis Pendens Filed

Threatened with the potential loss of its down payment, the buyer filed a lawsuit against the seller seeking specific performance of the contract, breach of contract and monetary damages. Simultaneously with filing the action, the buyer filed a Notice of Pendency against the property (commonly known as a “lis pendens”). A Notice of Pendency may be filed in any case in which the outcome can affect the title, use or possession of real estate, and serves as notice to the world that a party lays claim to the property. Many times, an aggrieved buyer will file a lis pendens in order to tie up the property in litigation to either force concessions from the seller or protect a down payment from being turned over to the seller when in default under the contract of sale.

Ready, Willing and Able:

Failure to Prove Buyer Was “Ready, Willing and Able” to Close

To defend the lawsuit, the seller retained Richard A. Klass, Esq., Your Court Street Lawyer, who filed a pre-answer motion to dismiss the lawsuit. In the motion, the seller claimed that the complaint failed to state that the buyer substantially performed its contractual obligations and was ready, willing and able to close title.

In determining a motion to dismiss, a court must construe the complaint and accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion. 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144 [2002]. Further, a court must give the plaintiff the benefit of every possible favorable theory. Leon v. Martinez, 84 NY2d 83 [1994]. Further, a court may consider additional facts contained in affidavits submitted by a plaintiff to remedy any defects in the complaint. Rovello v. Orofino Realty Co., 40 NY2d 633 [2 Dept. 1976].

In an action for specific performance, the elements of the complaint must show that “the plaintiff substantially performed its contractual obligations and was willing and able to perform its remaining obligations, the defendant was able to convey the property, and that there was no adequate remedy at law.” E&D Group, LLC v. Theodore Vialet, 134 AD3d 981 [2 Dept. 2015]. In this case, the judge found that the complaint did not allege all of the elements necessary to establish its right to specific performance. Also, the plaintiff failed to submit any affidavit but only its attorney’s affirmation; and an attorney’s affirmation is of no probative or evidentiary significance (see, Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455 [2 Dept. 2006]).

In deciding to grant the seller’s motion to dismiss the lawsuit, the judge held, “Notably, [Buyer’s] exhibits tend to show just the opposite, to wit that [Buyer] failed to perform on the contract and may even have been in breach of the contract by attempting to assign the contract to another entity.” Accordingly, the judge dismissed the complaint.

Richard A. Klass, Esq.
Your Court Street Lawyer

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