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Loris Campbell v. Planet Asef Realty

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


April 10, 2012

LORIS CAMPBELL,
APPELLANT,
v.
PLANET ASEF REALTY, SAXON NATIONAL MORTGAGE ALSO KNOWN AS
SAXON NATIONAL MORTGAGE BANKERS LTD., VIRGINIA WOLF, AS EXECUTRIX OF THE ESTATE OF MARK M. WOLF, DECEASED,
SUNRISE HOMES, INC. ALSO KNOWN AS SUNRISE REALTY, INC.,
DAVID KIMIA, INDIVIDUALLY AND AS AN AGENT AND OWNER OF SUNRISE HOMES, INC., AND AS PRESIDENT OF SUNRISE REALTY, INC.,
DANIEL KIMIA, INDIVIDUALLY AND AS AN AGENT AND OWNER OF SUNRISE REALTY, INC., STEVEN SHAHIPOUR, ESQ.,
MERRICK HOMES, INC. AND WHITESTONE PROPERTIES, INC., DEFENDANTS, -AND- ROBERT CARROZZO, ESQ.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered September 24, 2009, deemed from a judgment of the same court entered June 15, 2010 (see CPLR 5501 [c]).

Campbell v Planet Asef Realty

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 10, 2012

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order, insofar as appealed from as limited by the brief, granted a motion by defendant Robert Carrozzo, Esq. for summary judgment dismissing the complaint as against him. The judgment, entered pursuant to the September 24, 2009 order, dismissed the complaint as against defendant Robert Carrozzo, Esq.

ORDERED that the judgment is affirmed, without costs.

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 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.

Plaintiff seeks damages from Carrozzo based on his alleged legal malpractice and fraud. The Civil Court granted Carrozzo's motion, pursuant to CPLR 3212, for summary judgment dismissing the cause of action against him for legal malpractice, and also granted Carrozzo's motion to dismiss so much of the causes of action sounding in fraud as were asserted against him, on the ground of plaintiff's failure to plead those claims with particularity, as required under CPLR 3016 (b). Since, on appeal, plaintiff does not address the Civil Court's determination with respect to the pleading deficiencies of her fraud causes of action insofar as they were against Carrozzo, we consider only the Civil Court's award of summary judgment dismissing plaintiff's cause of action against Carrozzo for legal malpractice.

To prevail in an action for legal malpractice, a plaintiff must establish 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 plaintiff sustained actual and ascertainable damages as a result (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Malik v Beal, 54 AD3d 910, 911 [2008]; Carrasco v Pena & Kahn, 48 AD3d 395, 396 [2008]). " To succeed on a motion for summary judgment dismissing the complaint in a legal malpractice action, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action'" (Gelobter v Fox, 90 AD3d 829, 830-831 [2011], quoting Scartozzi v Potruch, 72 AD3d 787, 789-790 [2010]).

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, 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.

We note that, although plaintiff argued that Carrozzo's motion was premature because she had not yet deposed defendant Steven Shahipour, she failed to comply with the prerequisites for opposing a summary judgment motion on grounds of prematurity (CPLR 3212 [f]), as she failed either to offer evidence indicative that further discovery might lead to relevant evidence (see Hanover Ins. Co. v Prakin, 81 AD3d 778, 780 [2011]; Eliacin v Citibank, N.A., 2002 NY Slip Op 40441[U], *1 [App Term, 2d & 11th Jud Dists 2002]) or, in this action which had been pending for seven years at the time Carrozzo moved for summary judgment, to demonstrate that she had conducted discovery in a reasonably diligent manner during the course of the litigation (see Guarino v Mohawk Containers Co., 59 NY2d 753 [1983]; see also Dabbs v City of Peekskill, 178 AD2d 577 [1991]; Witte v Incorporated Vil. of Port Washington N., 114 AD2d 359 [1985]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: April 10, 2012

20120410

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