Gershkovich v Miller, Rosado & Algios, LLP

[*1] Gershkovich v Miller, Rosado & Algios, LLP 2013 NY Slip Op 50050(U) Decided on January 9, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 9, 2013
Supreme Court, Kings County

Tibor Gershkovich, GALINA GERSHKOVICH, and TIBOR 105, LLC, Plaintiffs,

against

Miller, Rosado & Algios, LLP and ARTHUR WELSHER, Defendants.



18273/2008



Plaintiff Attorney: Roman Popik, P.C., 1500 Broadway, Suite 2013, New York, NY 10036

Defendant Attorney: Garcia & Stallone, 2076 Dee Park Avenue, Deer Park, New York 11729-2102

David Schmidt, J.

Defendant Miller, Rosado & Algios, LLP (Miller) moves, pursuant to CPLR 2221, for renewal of its summary judgment motion and, upon renewal, for an order dismissing the complaint and all cross-claims asserted against it. Plaintiffs Tibor Gershkovich and Galina Gershkovich oppose the motion.

This is an action for legal malpractice arising from defendants' representation of plaintiffs in the purchase of two commercial condominium units in 2005. The underlying facts are fully set forth in the decision on the prior motion.

Previously, defendants had separately moved for summary judgment. In its decision, dated February 15, 2011, this court denied defendants' motions insofar as they sought to dismiss the cause of action for legal malpractice asserted by plaintiffs. See affirmation in support of Karl Zamurs dated August 10, 2012 (Zamurs aff.), Ex. A (Decision and Order).[FN1]

In support of its motion for summary judgment, Miller had submitted the affidavit of Christopher Rosado. In his affidavit (see Zamurs aff., Ex. B) therein, Mr. Rosado stated that he [*2]was retained by co-defendant, Arthur Welsher, solely to represent the plaintiff at the closing of the purchase of the units. All other aspects of the purchase were performed by the co-defendant. Mr. Rosado did not negotiate, or participate in any way in the negotiation of the contract of sale of the subject units. He did not review any documents with plaintiffs prior to the date of the closing. Plaintiffs did not seek his advice concerning the leasing of the units and Mr. Rosado did not represent them or prepare any documents concerning the leasing of the units.

In opposition to Miller's motion, plaintiffs submitted the affidavit of Tibor

Gershkovich, a practicing medical doctor, in which he stated that Miller (through Rosado) advised him and his wife that "the commercial units were merely an appendage to the plaintiffs condominium, had zero percentage of the common elements, paid no condominium dues or assessments, and were not bound by any of the restrictions imposed upon the residential unit owners." See affirmation of Roman Popik dated September 5, 2012 (Popik aff.), Ex. B, ¶ 29. Dr. Gershkovich also stated in his affidavit that, following the advice of Miller, he did not submit prior notice to the Board of Managers concerning the entering into the leases for the subject units. Id., ¶ 20.

This court, in denying Miller's motion for summary judgment, found that Mr. Rosado's affidavit was sufficient to make a prima facie showing that Miller did not negligently advise the plaintiffs. However, the court found that the affidavit of Dr. Gershkovich raised a question of fact as to whether Mr. Rosado advised the plaintiffs that the commercial units were not bound by any of the restrictions imposed upon the residential unit owners.

Subsequently, on January 25, 2012 and March 28, 2012, the deposition of plaintiff Tibor Gershkovich was held. See Zamurs aff., Ex. C (transcript).

Miller now moves to renew its summary judgment motion, arguing that the testimony of plaintiffs at their depositions contradict the affidavit relied on by plaintiffs to defeat Miller's motion for summary judgment and also provide evidence which clearly demonstrates that plaintiffs cannot establish the requisite elements of legal malpractice against Miller.

A motion for leave to renew is addressed to the sound discretion of the court." Matheus v Weiss, 20 AD3d 454, 454-455 (2d Dept 2005). Pursuant to CPLR 2221, a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e] [2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion." CPLR 2221(e) (3).

In the matter at bar, the court finds that Miller has established reasonable justification for his initial failure to submit the new facts in that the evidence revealed by the testimony of plaintiff Dr. Tibor Gershkovich was not known at the time of the making of the original motion for summary judgment. Therefore, the court grants Miller's motion to renew its prior summary judgment motion.

Upon renewal of Miller's motion for summary judgment, the court further finds that Miller has established entitlement to judgment dismissing plaintiffs' complaint.

At his deposition, Dr. Gershkovich testified that the contract of sale for the subject units was negotiated solely by Mr. Welsher. Tr. at 31. According to plaintiff, Mr. Welsher told him that the units could be rented out like a commercial unit. Id. Plaintiff did not speak to anyone other than Mr. Welsher prior to the signing of the contract of sale. Id. at 48.

At the closing, plaintiffs were represented by Mr. Rosado. Id. at 59. According to Dr. [*3]

Gershkovich, he spoke to Mr. Rosado one week prior to the closing. Id. at 60. During the conversation, he asked Mr. Rosado if he reviewed all of the documents needed for closing on the units and whether there would be any problems during the closing. Id. Significantly, however, Dr. Gershkovich acknowledged that he did not mention any particular problems that he may have had in mind. Id.

Dr. Gershkovich further testified that he called Mr. Rosado one more time on the day before the closing. Id. at 61. During this conversation, he again asked Mr. Rosado if he had reviewed all of the documents, including the offering plan and by-laws, to which Mr. Rosado responded in the affirmative. Id. at 61-63. However, Dr. Gershkovich testified that he did not ask for details and that he merely asked in "general" whether Mr. Rosado had read the documents. Id. at 63. He did not discuss anything specifically with Mr. Rosado about the by-laws or offering plan. Id.

The plaintiff testified that Mr. Rosado sent him a closing statement one week after the

closing. Id. at 68. Dr. Gershkovich called Mr. Rosado to thank him after receiving the closing

document. Id. at 69. Dr. Gershkovich never spoke to Mr. Rosado again concerning the subject units. Id.

Dr. Gershkovich testified that Mr. Welsher represented him and his wife with respect to the negotiating and subsequent leasing of the purchased units. Id. at 72, 74, 77. Prior to signing the leases, Dr. Gershkovich asked Mr. Welsher (as he had prior to signing the contract of sale) whether he needed to have anyone else's permission to rent the units or have construction work performed. Mr. Welsher advised Dr. Gershkovich, that no such permission was necessary. Id. at 75, 78.

Contrary to his affidavit in opposition to the underlying motion, Dr. Gershkovich's deposition testimony indicates that plaintiff did not discuss anything specific concerning the offering plan and by-laws with Mr. Rosado. Rather, Dr. Gershkovich testified that the discussions he had with Mr. Rosado were limited to whether Mr. Rosado had reviewed the offering plan and by-laws. Significantly, there was no testimony as to any discussion with Mr. Rosado as to whether the plaintiffs needed to seek permission from the Board of Managers to lease the units.

Thus, the affidavit of Dr. Gershkovich can no longer provide a basis for an issue of fact to defeat Miller's prima facie showing that it did not negligently advise plaintiffs.

Moreover, plaintiff's deposition testimony makes clear that Mr. Rosado represented the plaintiffs only for the closing and did not represent them during the negotiations concerning the contract of sale of the subject units, or in the leasing of the units. Rather, it was Mr. Welsher who represented plaintiffs during these negotiations, advising them repeatedly that no permission was required to lease the units.

Critically, Mr. Welsher's deposition testimony confirms that he never advised Mr. Rosado or anyone else at Miller that plaintiffs were purchasing two commercial units with the purpose of leasing them out.[FN2] See transcript at 70, 72. According to Mr. Welsher, all he provided Miller [*4]was the contract of sale and the title report because the extent of Miller's representation was to do the closing only. Id. at 74, 84. Mr. Welsher also testified that, prior to the closing, he never discussed any discrepancies between the offering plan and by-laws with Miller. Id. at 76, 83-84.[FN3]

In sum, plaintiffs cannot argue that they relied on any advice of Mr. Rosado concerning the purchase or subsequent leasing of the subject units. Therefore, no question of fact exists concerning whether Miller can be held liable for legal malpractice and the claim is dismissed.

For all the forgoing reasons, it is:

ORDERED that the motion of defendant Miller, Rosado & Algios LLP for leave to renew its motion for summary judgment on the legal malpractice claim and any cross claims is granted; and it is further

ORDERED that, upon renewal, the court vacates its prior Order dated February 15, 2011, to the extent that it denied defendant Miller, Rosado & Algios LLP's motion for summary judgment, and grants defendant Miller, Rosado & Algios LLP's motion for summary judgment in all respects.

The foregoing constitutes the decision and order of the Court.

Dated: January 9, 2013

ENTER:

_______________________

J.S.C. Footnotes

Footnote 1: The court dismissed a breach of contract claim against both defendants as duplicative of the legal malpractice claim and found that the remaining claim could not be maintained by plaintiff Tibor 105 LLC because this entity did not come into existence until after defendants' representationof the Gershkoviches had come to an end. See Decision and Order at 16-17.

Footnote 2: While the instant motion was sub judice, the depositions of defendants took place and transcripts were provided to the court. Mr. Welsher's deposition took place on November 7, 2012 and Miller's deposition (by Mr. Rosado) took place on November 26, 2012.

Footnote 3: Mr. Rosado also testified that he was engaged solely to ensure that plaintiffs, as purchasers, received good and valid title and, as such, would only have requested the contract of sale and title report to review. See Transcript at 31, 37, 42.