Board of Mgrs. of Bridge Tower Place Condominium v Starr Assoc., LLP

[*1] Board of Mgrs. of Bridge Tower Place Condominium v Starr Assoc., LLP 2012 NY Slip Op 52338(U) Decided on December 12, 2012 Supreme Court, New York County Schweitzer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2012
Supreme Court, New York County

The Board of Managers of Bridge Tower Place Condominium, Plaintiff,

against

Starr Associates, LLP, ALLAN STARR, EVAN SCHIEBER, and ANDREA L. ROSCHELLE, Defendants.



600934/10



Plaintiff's Attorney:

David Bolton, Esq.

666 Old Country Road

Garden City, NY 11530

Defendant's Attorney:

Caroline M. Freilich, Esq.

Furman Kornfeld & Brennan LLP

61 Broadway

New York, NY 10006

Melvin L. Schweitzer, J.

In this action alleging, among other things, legal malpractice, plaintiff The Board of Managers of Bridge Tower Place Condominium (the Condominium) moves, pursuant to CPLR 3212, for summary judgment against defendants Starr Associates, LLP (Starr Associates), a law firm, and attorneys Evan Schieber (Schieber) and Andrea Roschelle (Roschelle)(together, defendants),[FN1] on the issue of liability on its complaint,[FN2] and for an order dismissing the affirmative defenses alleging comparable negligence.[FN3]

Defendants move, pursuant to CPLR 3212, for summary judgment against plaintiff dismissing plaintiff's claim in its entirety. [*2]

Background

The Condominium is comprised of a 38-story building located at 410 East 60th Street, New York, New York. There is a single penthouse in the building, which is owned by Robert Luzzi (Luzzi). The penthouse includes a wrap-around terrace, which is exclusively owned by Luzzi.

According to the by-laws of the Condominium (By-Laws), access to Luzzi's terrace by the Condominium may only be had for purposes of inspection, maintenance and repair. Sometime in late 2005, the Condominium sought access to Luzzi's terrace to install a scaffold, ostensibly to perform inspection and make repairs. At about the same time, unit owners in the Condominium requested that their windows be washed by the Condominium. The Condominium determined that the "most practical and cost-effective way to wash the windows" was to use the scaffolding already installed on Luzzi's terrace. Aff. of Andrew Margulis, ¶ 9.

Luzzi objected to the use of the scaffolding to wash the Condominium's windows. In June 2006, he commenced an action entitled Luzzi v Bridge Tower Place Condominium, Index No. 107881/06, in the Supreme Court, New York county (Luzzi action). In the Luzzi action, Luzzi sought to permanently enjoin the Condominium from utilizing his terrace for purposes of installing a scaffold to wash the Condominium's exterior windows. He also sought a declaration that he was not required to grant such access. Along with a summons with notice, Luzzi filed an order to show cause for a temporary restraining order to enjoin the Condominium from using his terrace for window washing.

The Condominium hired Starr Associates to represent it in the Luzzi action. The matter was handled by Schieber and Roschelle.

Starr Associates' strategy for resolution of the matter is undisputed. Starr would stipulate with Luzzi that (1) the Condominium would not perform any window washing from his terrace, and would use the scaffolding only for facade inspection and maintenance, and (2) that the stipulation would be without prejudice to the Condominium to allow it to amend its By-Laws in the future to provide that Luzzi (and other unit owners) could not deny the Condominium access to his property for window washing purposes (the Stipulation)(Notice of Motion, Ex. I). Thus, Schieber and Roschelle's plan, apparently, was that the stipulated injunction would be temporary, until the By-Laws could be amended.

The Stipulation provided, in pertenant part, that "[the Condominium] is permanently enjoined from erecting scaffolding or any other form of access to the Premises utilizing, obstructing or interfering with [Luzzi's] unit, including the terrace surrounding [Luzzi's] Unit, for purposes of exterior window washing in or about the Premises." Stipulation, ¶ 4. The stipulation further provided that "[n]othing contained in this stipulation is intended or shall be construed to limit or impair the parties' right or obligations under the condominium's declaration and by-laws including, but not limited to, [the Condominium's] rights and obligations as set forth in Article 12 of the declaration including, but not limited to, Section 12.2 (c) (c-4)." Id., ¶ 8. Section 12.2 (c) (c-4) apparently provides the Condominium the right to seek to amend its By-Laws.[FN4] It is undisputed that both parties to this action — the Board of Managers and its law firm — believed that the Stipulation would accomplish the Condominium's goal of using Luzzi's [*3]terrace as an anchor for scaffolding that would allow the Condominium to wash the exterior windows of the building. The Stipulation then was signed by Schieber, as attorney for the Board, and by Luzzi's counsel, and was so-ordered by Justice Leland DeGrasse.

The Condominium went forward with its plan to have the By-Laws amended to provide access from Luzzi's terrace to wash the windows (Amendment)(Notice of Motion, Ex. O).[FN5] The Amendment was approved, effective October 12, 2006.

Following adoption of the Amendment, Luzzi continued to deny the Condominium access to his premises for purposes of window washing. As a result, the Condominium moved before Justice DeGrasse to enforce the Stipulation. The Condominium argued that the Stipulation did not apply to enjoin the Condominium from amending the By-Laws to allow it access to Luzzi's premises.

Justice DeGrasse denied the motion in a decision and order dated May 16, 2007 (Order). Notice of Motion, Ex. F. In the Order, Justice DeGrasse held that paragraph 4 of the Stipulation created a permanent injunction in Luzzi's favor, forever denying the Condominium access to Luzzi's terrace to perform window washing. The Order was affirmed by the Appellate Division, First Department, in a decision dated June 10, 2008. See Luzzi v Bridge Tower Place Condominium, 52 AD3d 290 (1st Dept 2008)(Appellate Decision). In the Appellate Decision, the Court affirmed that paragraph 4 created a permanent injunction in Luzzi's favor. The court stated that "[w]e agree with the motion court that the unambiguous stipulation is valid and enforceable according to its plain meaning, and consequently construe the stipulation's permanent injunction as surviving defendant's subsequent amendment to its bylaws [citations omitted]." Id. at 291.

The Condominium claims that it has been damaged by defendants' failure to accomplish the goals of the Stipulation, in that now it cannot use Luzzi's terrace as a platform for washing the exterior windows. The Condominium claims that using Luzzi's terrace would have held the cost of washing the windows to approximately $35,000, but that doing it from street-level scaffolds will cost up to $1 million. The Condominium has not yet conducted any window washing, so no money has yet been expended. The Condominium further maintains that it was damaged in an amount in excess of $100,000 in fees paid to counsel Stroock & Stroock & Lavan, which firm the Condominium hired for the unsuccessful appeal of the Order.

The Condominium is arguing that defendants committed legal malpractice by failing to obtain the intended purpose of the Stipulation. They seek summary judgment on the issue of liability on their legal malpractice cause of action, and the dismissal of defendants' affirmative defenses alleging comparative fault against the Condominium. Defendants retort that they acted reasonably throughout, and that the failure of the Stipulation to accomplish its alleged goals can be attributed to the vagaries of the courts, and to the Condominium itself. Defendants claim to be completely blameless.

Discussion

A. Summary Judgment

"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." [*4]Dallas-Stephenson v Waisman, 39 AD3d 303, 306 (1st Dept 2007), citing Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact.'" People v Grasso, 50 AD3d 535, 545 (1st Dept 2008), quoting Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable issue of fact, summary judgment must be denied. Rotuba Extruders v Ceppos, 46 NY2d 223 (1978); Gross v Amalgamated Housing Corporation, 298 AD2d 224 (1st Dept 2002).

B. Legal Malpractice In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence [internal quotation marks and citations omitted].

Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 (2007); see also Dombrowski v Bulson, 19 NY3d 347 (2012); AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428 (2007). A mere error in judgment does not amount to malpractice (Rosner v Paley, 65 NY2d 736 [1985]), and "the selection of one among several reasonable causes of action does not constitute malpractice [internal quotation marks and citation omitted]." Dimond v Kazmierczuk & McGrath, 15 AD3d 526, 526 (2d Dept 2005).

On this motion, defendants are lavish in their praise of themselves on the reasonableness of their proposed strategy to seek a settlement from Luzzi which would eventually allow the Condominium to use Luzzi's terrace as a staging point for the window washing of the building. However, the question is not the reasonableness of their strategy, but the reasonableness of their execution of their strategy. Defendants claim that the Condominium "cannot demonstrate that Starr's recommendations and conduct was unreasonable under the circumstances" (Memorandum of Law in Opp., at 21), but, in fact, the Condominium has demonstrated the unreasonableness of defendants' conduct, in that the Stipulation badly failed to produce the result which defendants, and the Condominium, expected. Contrary to defendants' arguments, it does not take an expert to see that the Stipulation, as the Courts have found, calls for a permanent injunction.

Because the Condominium is claiming that the Stipulation produced a result diametrically opposite to defendants' strategy, and have shown that it did so, the question is not, as defendants argue, whether they chose a reasonable goal in entering the Stipulation. The goal was reasonable, the execution was not.

Defendants argue that they did not "guarantee" that the Stipulation would produce any particular result. This argument is specious. Defendants clearly believed that they had procured the sought-after result, and the Condominium was reasonable in believing that such was the case. Defendants' contention that the fault is with the courts for coming to a wrong conclusion [*5]concerning the wording of the Stipulation is equally specious.[FN6]

Defendants claim that the Condominium has not been damaged, because it would have lost the Luzzi action in any event, as Luzzi was in the right in his interpretation of the By-Laws. However, this argument neglects to take into account that there was another possible outcome; a stipulation which delivered the result defendants promised. This argument for a lack of damages is meritless.

The court finds that the sums the Condominium expended to pursue its appeal of the Order are damages sufficient to complete a cause of action for legal malpractice. See DePinto v Rosenthal & Curry, 237 AD2d 482, 482 (2d Dept 1997) ("litigation expenses incurred in an attempt to avoid, minimize, or reduce the damage caused by the attorney's wrongful conduct can be charged to the attorney"); see also Lory v Parsoff, 296 AD2d 535 (2d Dept 2002). However, the Condominium's argument for further damages is not on firm ground. The Condominium has yet to undertake any project to wash the windows, much less one costing $1 million. In fact, it might not be found reasonable to pursue such a tack, as the By-Laws specifically provide that exterior window washing is the responsibility of the individual unit owners. See By-Laws, Article 5, Section 5.1.3 (a), as amended, and prior to amendment, Notice of Motion, Ex. O. The fact that some unit owners have added "soffits" to their windows, thereby making them difficult or impossible to open (and so, to wash), is not the Condominium's responsibility.[FN7] The Condominium has not denied that some unit owners have used an outside cleaning company to clean their windows, so it is apparent that it can be done. The claim that the Condominium will spend $1 million to wash the windows is speculative, as it has not yet spent any money in an attempt to wash the building's windows. Thus, while the Condominium has established a claim for malpractice, the extent of its damages is in doubt.

C. Affirmative Defenses of Comparable Fault

Defendants try to blame the Condominium (as well as the courts) for the failure of the Stipulation, specifically targeting the Condominium's president, Andrew Margulis (Margulis), a lawyer himself, who dealt with defendants as the Condominium's representative. Defendants maintain that Margulis is a "sophisticated client" who "micromanaged" the Stipulation (Memorandum of Law in Opposition, at 32), thereby casting blame upon the Condominium for the failure of defendants' strategy. Although Margulis certainly was aware of the defendants' strategy, and approved of it, there is no evidence at all, however, that he "micromanaged" the drafting of the Stipulation, or in any way took over the representation of the Condominium in the matter so as to make him, and by extension the Condominium, at fault for the failure of the Stipulation to achieve the desired results.

In fact, in the last e-mail exchange between Margulis and Schieber, Schieber informed Margulis that Luzzi's counsel "has made all of my requested changes. I am signing and returning it to him — unless you have an issue." Margulis responded "[t]hat's fine. I'll leave it to your [*6]judgment." Notice of Motion, Ex. M. Thus, it is clear that Margulis did not, as defendants argue, "impose[d] a strategic decision on counsel ..." (Town of North Hempstead v Winston & Strawn, LLP, 28 AD3d 746, 748 [2d Dept 2006]), and the failure of the Stipulation to secure the Condominium's rights was not "due solely to [Margulis's] own actions" on behalf of the Condominium. DiPlacidi v Walsh, 243 AD2d 335, 335 (1st Dept 1997). There is no rule that a lawyer cannot rely on the advice of his own lawyers, and defendants' choice to blame Margulis and the Condominium for their own failings is unfortunate, to say the least. The affirmative defenses of comparable fault will be dismissed.

Conclusion

The Condominium's motion for summary judgment on the issue of liability for defendants' legal malpractice is granted. The Condominium has yet to prove the extent of its damages. The affirmative defenses casting blame on the Condominium for the poor result defendants obtained must be dismissed.

Defendants' motion for summary judgment dismissing plaintiff's claim in its entirety is denied.

Accordingly, it is

ORDERED that the motion brought by plaintiff Board of Managers of Bridge Tower Place Condominium for summary judgment against defendants Starr Associates, LLP, Evan Schieber and Andrea Roschelle, on the issue of liability on its claim for legal malpractice, is granted as against these defendants; and it is further

ORDERED that the part of plaintiff Board of Managers of Bridge Tower Place Condominium's motion seeking the dismissal of the fourth and ninth affirmative defenses in the answer is granted, and these affirmative defenses are dismissed; and it is further

ORDERED that defendants' motion for summary judgment is denied.

Dated:December 12 , 2012

ENTER:

/s/Melvin L. Schweitzer

J.S.C. Footnotes

Footnote 1:The Condominium is not moving against defendant Allan Starr.

Footnote 2:The Condominium does not here address any of its claims other than the first cause of action for legal malpractice. It offers no justification for summary judgment on its other causes of action.

Footnote 3:These appear to be the fourth and ninth affirmative defenses.

Footnote 4:The parties do not attach a copy of the declaration.

Footnote 5:The Amendment applied to all unit owners, not just Luzzi.

Footnote 6:In a letter dated June 7, 2007, Roschelle opines to the Condominium that "[a]s litigators we are faced with an overburdened judiciary that sometimes turns a deaf ear to and overlooks the merits of a case that to objective observers seems a clear winner. The judge was wrong here, plain and simple." Notice of Motion, Ex. T, at 2.

Footnote 7:This court does not agree that defendants require discovery of the Condominium's Offering Plan to determine whether the Condominium must agree to allow the addition of soffits.