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TMB Communications v. Preefer

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 7, 2009

TMB COMMUNICATIONS, ET AL., PLAINTIFFS-RESPONDENTS,
v.
JOHN J. PREEFER, DEFENDANT-APPELLANT. [AND A THIRD-PARTY ACTION]

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered October 31, 2008, which denied defendant's motion for summary judgment dismissing the complaint in this legal malpractice action, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Nardelli, Buckley, Acosta, DeGrasse, JJ.

108715/06

The motion court correctly found the retainer agreement ambiguous (see W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 162 [1990]) with respect to the scope of defendant's obligations (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]). Plaintiffs' explanation for the late submission of their pre-merger claim was neither a conclusive bar to their assertion that defendant's advice or failure to respond to their inquiry was the "but for" cause of their loss, since an informal judicial admission may be explained at trial (see Ficus Inv., Inc. v Private Capital Mgt., Inc., _AD3d_, 872 NYS2d 93, 100 [2009]), nor a basis for judicial estoppel, since their prior position was unsuccessful (see Factory Mut. Ins. Co. v Mut. Marine Off., Inc., 57 AD3d 304 [2008]; Kalikow 78/79 Co. v State of New York, 174 AD2d 7, 11 [1992], appeal dismissed 79 NY2d 1040 [1992]).

We have considered appellant's remaining contentions and find them unavailing.

M-1134

Motion seeking leave to enlarge the record denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090407

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