Romano v Ficchi

[*1] Romano v Ficchi 2009 NY Slip Op 51011(U) [23 Misc 3d 1130(A)] Decided on May 22, 2009 Supreme Court, Kings County Rivera, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2009
Supreme Court, Kings County

Carol Romano, Plaintiff,

against

Michael S. Ficchi, Esq., Defendant.



376/09



Counsel:

For P:

Munzer & Saunders, LLP

18 E. 48th St Suite 801

New York, NY 10017

212-755-0008

For D:

John H. Somozo

Michael H. Bazzi

233 Broadway 28th floor

New York, NY

10279

212-238-8900

Francois A. Rivera, J.

By notice of motion filed on March 26, 2009, defendant Michael S. Ficchi, Esq. moves pursuant to CPLR 3211(a)(7) for an order dismissing the complaint against him. Plaintiff Carol Romano, opposes the motion.

BACKGROUND

On January 8, 2009, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. Plaintiff's complaint alleges the following facts. Defendant is an attorney and has represented the plaintiff in the purchase of a residential condominium unit located at 313 and 314 23rd street, Brooklyn, New York. Plaintiff advised the defendant that she wanted to purchase the unit specifically because of the view the unit offered. The defendant previously represented the seller of an adjoining real property located at 312 23rd street, Brooklyn, New York. As a result of that prior representation, the defendant knew that the purchaser of the adjoining property intended to demolish the existing one family structure and build a four family structure at that location which would obstruct plaintiff's view from the condominium unit. The new structure was erected and does obstructs [*2]plaintiff's view.

Plaintiff claims that the defendant's failure to inform her of the proposed building of the structure damaged her by reducing the value of her unit and also because she would not have purchased the unit had she known of the planned construction. Plaintiff relies on these facts to support three causes of action, namely, breach of fiduciary duty, negligence and breach of contract. Defendant moves to dismiss the complaint pre-answer pursuant to CPLR 3211(a)(7) for failure to state a cause of action.

MOTION PAPERS

Defendant's motion consist of an affirmation of his counsel and a copy of the plaintiff's summons and complaint. Plaintiff has opposed the motion with a memorandum of law and defendant has replied to the memorandum of law with an attorney's affirmation.

LAW AND APPLICATIONCPLR 3211 (a)(7) provides that "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action." On a motion to dismiss pursuant to CPLR 3211 (a)(7) the complaint must be liberally construed in the light most favorable to the plaintiff and all allegations must be accepted as true (see Leon v. Martinez, 84 NY2d 83, 87 [1994]; LoPinto v. J.W. Mays, Inc.,170 AD2d 582 [2 Dept.,1991]). "Initially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977)]. The court is required to accord plaintiff the benefit of all favorable inferences which may be drawn from the pleading, without expressing an opinion as to whether the plaintiff can ultimately establish the truth of their allegations before the trier of fact (see Campaign for Fiscal Equity, Inc. v. State, 86 NY2d 307 [1995] citing (219 Broadway Corp. v. Alexander's, Inc., 46 NY2d 506 [1979]). In assessing a motion under CPLR § 3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint ( see Rovello v. Orofino Realty Co., Inc., 40 NY2d 633, 635 [1976]) and the criterion is whether the proponent of the pleading has a cause of action, not whether he or she has stated one ( see Guggenheimer v. Ginzburg, 43 NY2d at 275 [1977]).

It is well settled that an action sounding in legal malpractice requires the showing of, inter alia, the negligence of the attorney (Lauer v. Rapp, 190 AD2d 778 [2nd Dept 1993]). To establish a prima facie case of legal malpractice, plaintiff must prove that (1) attorney departed from the exercise of that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community, (2) attorney's departure from the standard of care was the proximate cause of the loss sustained by plaintiff, and (3) plaintiff incurred damages as a direct result of attorney's actions (Edwards v. Haas, Greenstein, Samson, Cohen & Gerstein, P.C., 17 AD3d 517 [2nd Dept., 2005]).

An attorney owes each client a duty to exercise that degree of care, skill and diligence commonly possessed and exercised by an ordinary member of the legal community. (Logalbo v. Plishkin, Rubano & Baum, 163 AD2d 511 [2 Dept.,1990]). In order to state a claim for legal malpractice the plaintiff must establish that the attorney's conduct fell below the ordinary reasonable skill and care possessed by an average member of the legal community (Raphael v. Clune, White & Nelson, 201 AD2d 549 [2 Dept.,1994]). [*3]

In addition, akin to medical malpractice actions sounding in lack of informed consent, as a general principle when an attorney, whether negligently or intentionally, withholds from a client information which is material to a client's decision and knows or has reason to know the client would rely on the information, the attorney may be held liable for the consequential losses resulting from the client's uninformed decision (see 15 N.Y.Prac., New York Law of Torts § 13:33 Chapter 13. Professional Malpractice). If an attorney negligently or willfully withholds from his client information material to the client's decision to pursue a given course of action, or to abstain therefrom, then the attorney is liable for the client's losses suffered as a result of the action taken without benefit of the undisclosed material facts (Heine v. Newman, Tannenbaum, Helpern, Syracuse & Hirschtritt, 856 F. Supp. 190, 194-195 [S.D.NY,1994]).

Plaintiff alleges that defendant knew that the purchaser of an adjoining property was going to build on the land in a way that would obstruct her view from her condominium. She further alleges that he gained this knowledge by representing the seller of the adjoining property in the sale to the new owner. She contends he did not inform her of this fact to her detriment and damage. The damage was the loss of the market value of the unit caused by the loss of the view and not having the opportunity to take into consideration the anticipated loss of the view before making a decision to buy the unit for the price she paid. Accepting all of the plaintiff's allegations fact as true, and according her every favorable inference, the remaining question is whether these facts support a claim for legal malpractice.

It is well settled that the relationship of client and counsel is one of "unique fiduciary reliance" (Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1 [1st Dept.,2008] citing Matter of Cooperman, 83 NY2d 465 at 472 [1994] and that the relationship imposes on the attorney "[t]he duty to deal fairly, honestly and with undivided loyalty ... including maintaining confidentiality, avoiding conflicts of interest, operating competently, safeguarding client property and honoring the clients' interests over the lawyer's"(Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, supra).

The attorney's obligation is to exercise professional judgment "solely for the benefit of the client and free of compromising influences and loyalties" (Code of Professional Responsibility EC 5-1) to represent the client zealously within the bounds of the law ( see Code of Professional Responsibility Canon 7), and "to seek the lawful objectives of the client through reasonably available means permitted by law and the Disciplinary Rules" (Code of Professional Responsibility DR 7-101 [A] [1], (Sedore v. Epstein, 56 AD3d 60 [2nd Dept.,2008]).

Defendant's knowledge of the intention of an adjoining buyer to develop his property in a way that would obstruct the view of the condominium unit plaintiff was considering to purchase and his failure to inform the her that she was going to lose the very view which induced her to purchase it may support a claim of legal malpractice. It cannot be said as a matter of law that it does not. A lawyer should look out for his client's interest and inform his client of those matters within his knowledge that are material to the client's informed decision making process. Plaintiff's contention that she would not have bought the unit had she known this fact is reasonable. Her claim that the unit has lost value because of the loss of her view is also reasonable and supports the damage element of a legal malpractice claim. Whether or not the plaintiff can ultimately establish the truth of their allegations before the trier of fact is irrelevant (Campaign for Fiscal Equity, Inc. v. State, 86 NY2d 307 [1995]). [*4]

A claim for breach of contract and breach of fiduciary duty, premised on the same facts and seeking the identical relief sought in the legal malpractice cause of action, is redundant and should be dismissed(Garten v. Shearman & Sterling LLP, 52 AD3d 207, [1st Dept 2008] citing Sage Realty Corp. v Proskauer Rose, 251 AD2d 35 [1st Dept 1998]and Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267 [1st Dept 2004]); see also (Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 290 AD2d 399 [1st Dept., 2002]).

Defendant's application to dismiss plaintiff's second cause of action for legal malpractice is denied. and the application to dismiss the first and third cause of action for breach of contract and breach of fiduciary duty is granted.

The foregoing constitutes the decision and order of this court.

______________________________________x

J.S.C.