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Loris Campbell v. Planet Asef Realty

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This opinion is uncorrected and will not be published in the printed Official Reports.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

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