Jun 11th, 2013

FKB’s Andrew S. Kowlowitz Obtains Dismissal of a Legal Malpractice Action Brought Against a Real Estate Attorney in the New York County Supreme Court.

FKB’s Andrew S. Kowlowitz obtains dismissal of a claim for legal malpractice action arising from an underlying purchase of a Cooperative apartment in Manhattan. FKB’s client are a New York City law firm and its partners. The Firm was retained to represent the Plaintiffs, purchasers of a Cooperative apartment on the Upper West Side of Manhattan. The Plaintiffs purchased the Cooperative directly from the Sponsor. Thereafter, the Plaintiffs allege they sought to renovate the kitchen and bathroom, but were thwarted as the Cooperative Board would not permit the renovations. The Plaintiffs claim the apartment was rendered valueless and uninhabitable.

Plaintiffs thereafter sued their lawyers claiming that the contract of sale failed to include certain provisions, which would have protected their rights to perform the intended renovations. On behalf of its clients, FKB filed a pre-answer motion to dismiss pursuant to CPLR Rule 3211 (a)(1) & (a)(7). FKB argued that: 1) Plaintiffs failed to submit an Alteration Agreement to the Board, which was a condition precedent to performing renovations in the apartment. On this basis, Plaintiffs can only speculate that the Board would have refused them the right to perform renovations; and 2) documentary evidence, namely prior affidavits submitted to the Court in related litigation involving Board, disproved many of the factual claims asserted in the Complaint. On May 15, 2013, following oral argument, Justice Ellen M. Coin (N.Y. County Supreme) granted FKB’s motion to dismiss in its entirety. The Court found that Plaintiffs’ failure to satisfy the condition precedent and submit the Alteration Agreement rendered the claim speculative and that documentary evidence undermined the factual allegations asserted in the Complaint.

Should you have any questions concerning this decision, or the defense of professionals in general, please do not hesitate to contact Andrew S. Kowlowitz.