Muco v Sadiku

[*1] Muco v Sadiku 2019 NY Slip Op 50710(U) Decided on May 2, 2019 Supreme Court, Queens County Butler, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2019
Supreme Court, Queens County

Albert Muco and RAJMONDA MUCO, Plaintiffs,

against

Tarzan Sadiku, MIRANDA SADIKU, and KRESHNIK SADIKU, 60th Court Maspeth LLC, EYAL SHACHI individually and as manager of 60th Court Maspeth LLC, JUDITH SHACHI individually and as manager of 60th Court Maspeth LLC, DANNY ZIVAN individually and as manager of 60th Court Maspeth LLC and TRINITY ABSTRACT LLC, Defendants. TARZAN SADIKU, MIRANDA SADIKU and KRESHNIK SADIKU, Third-Party Plaintiffs, 60th COURT MASPETH LLC, EYAL SHACHI, RIDGE ABSTRACT CORP., OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY and COLLERAN, O'HARA & MILLS, PC., Third-Party Defendants. 60th COURT MASPETH LLC, Fourth-Party Plaintiff, ROBERT A. PACHT, ESQ., ROTHKRUG, ROTHKRUG & SPECTOR, LLP, Fourth-Party Defendants.



18833/11
Denis J. Butler, J.

The following papers numbered 1 to 12 were read on this motion by fourth-party defendant Rothkrug, Rothkrug & Spector, LLP, for summary judgment dismissing the fourth-party complaint brought against it and for summary judgment on its counterclaim and cross claim.

Papers

Numbered

Notice of Motion, Affirmation, Affidavit,

Exhibits 1-7

Affidavit In Opposition, Exhibits 8-10

Reply Affirmation, Affidavit 11-12

Upon the foregoing papers, it is ordered that the branch of the motion for summary judgment dismissing the fourth-party complaint brought against fourth-party defendant Rotkrug, Rothkrug & Spector, LLP, is granted. The branches of the motion for summary judgment on the counterclaim and cross claim asserted by fourth-party defendant Rotkrug, Rothkrug & Spector LLP are denied.

I. The Facts and Allegations

This action concerns two premises: (1) 60-28 60th Place, Maspeth, New York (the Muco premises) and (2) 60-34 60th Place, Maspeth, New York (the Sadiku premises). The Mucos claim that the Sadikus are depriving them of an alleged easement burdening the latter's property which permits the former to use two parking spaces.

Defendant/third-party defendant/fourth-party plaintiff 60th Court Maspeth LLC (60th Court) is the seller of the two subject premises. 60th Court hired Vintage Homes, Inc. (Vintage), whose President is Danny Zivan, to serve as a construction manager and representative.

Acting as the representative of 60th Court, Vintage, by Zivan, retained fourth-party defendant Rothkrug, Rothkrug & Spector, LLP (RRS), a law firm, to prepare an instrument creating a permanent easement benefitting the Muco premises and burdening the Sadiku premises with two parking spaces and a means of access over the latter property from the public street known as 60th [*2]Court. RRS alleges that the instrument was merely intended to satisfy NYC Department of Buildings (DOB) requirements concerning construction permits and that the instrument contained no errors of omission or commission.

On February 5, 2009, 60th Court executed a Driveway Space Restrictive Declaration (the Declaration) prepared by RRS. The Declaration provided for an easement allowing ingress and egress over the Sadiku property to and from 60th Court, but it did not expressly provide that the current and future owners of the Muco premises were to have exclusive use of two parking spaces on the Sadiku premises. The Declaration was recorded on February 17, 2009, in the City Register's Office.

On or about June 25, 2009, defendant 60th Court, as seller, entered into a contract of sale with plaintiffs Albert Muco and Rajmonda Muco (the Muco contract) wherein plaintiffs purchased the first of the subject premises. Fourth-party defendant Robert A. Pacht, Esq., represented defendant 60th Court in the transaction. The Muco contract required 60th Court to file prior to the closing of title a Supplemental Driveway Space Restrictive Declaration (Supplemental Declaration) "conveying to Purchasers *** the absolute right of ingress and egress over the thatched portion and to park two vehicles on Parcel A [the Sadiku premises]****." The Supplemental Declaration further provided that the deed to Parcel A "specifically identify said driveway easement running in favor of the Premises [the Muco premises] herein."

Fourth-party defendant Robert A. Pacht, Esq., the attorney for 60th Court, agreed to have the Supplemental Declaration recorded against both the Muco premises and the Sadiku premises before title closed on the sale of the Muco premises. In or about November, 2009, RRS, retained by Pacht, prepared a document captioned "Declaration of Maintenance and Easement Agreement," which was intended to be the Supplemental Declaration contemplated by the Muco contract, and 60th Court signed it on November 19, 2009. The Supplemental Declaration was provided to Pacht prior to the closing of title on the Muco premises which occurred on or about November 20, 2009. However, Pacht, or the title company acting on his behalf, had not recorded the Supplemental Declaration prior to the closing of title as required by the Muco contract, although the title company at the closing allegedly charged a fee to do the recording.

On August 24, 2010, 60th Court, as seller, entered into a contract for the sale of the second premises to defendants Tarzan Sadiku, Miranda Sadiku, and Kreshnik Sadiku. Pacht represented [*3]60th Court in the transaction. The Sadiku contract prepared by Pacht failed to mention that the Mucos had an easement over the Sadiku premises allowing them the exclusive use of two parking spaces on the Sadiku premises along with ingress and egress from 60th Court Road. On or about September 16, 2010, third-party defendant Ridge Abstract Corp. provided Pacht with a title report for the Sadiku premises which noted the Declaration but not the Supplemental Declaration. After receiving the title report, Pacht did not inform Ridge Abstract Corp. or the attorneys for the Sadikus about the existence of the Supplemental Declaration. On October 4, 2010, at a time when the Supplemental Declaration still had not been recorded against either of the two subject premises, title closed on the Sadkiku premises. In addition to not recording the Supplemental Declaration himself or not seeing that the title company had done so, Pacht allegedly had not specifically identified the driveway easement on the deed given to the Sadikus.

II, Discussion

Turning first to the branch of the motion for summary judgment dismissing the fourth-party complaint brought against RRS, "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ***" ( Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]). Fourth-party defendant RRS successfully carried this burden.

"To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom ***" (Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Montanez v New York State Elec. & Gas, 144 AD3d 1241 [3d Dept 2016]; Murray v New York City Hous. Auth., 269 AD2d 288 [1st Dept 2000]). In the case at bar, fourth-party plaintiff 60th Court alleges that fourth-party defendant RRS was negligent in (1) preparing the Declaration which did not fully express the easement burdening the Sadiku property and (2) not seeing that the subsequently prepared Supplemental Declaration which did fully express the easement burdening the Sadiku premises was timely filed. In regard to the first claim of negligence, RRS alleged that there was no error in the preparation of the Declaration, as it was merely intended to satisfy DOB requirements. Zivan testified at his deposition that the Declaration was drafted to satisfy DOB requirements and that at the time of its preparation no specific parking spaces on the Sadiku premises had been chosen. Even if there was an error, RRS [*4]has made a prima facie showing that it was cured by the preparation of the fully accurate Supplemental Declaration, which should have been recorded prior to the Sadiku closing. RRS also points out that in Pacht's answer to the fourth-party complaint, he admits that the Supplemental Declaration was provided to him prior to the closing of title on the Muco premises. In regard to the second claim of negligence, RRS has made a prima facie showing that it was not retained to record the Supplemental Declaration. RRS has demonstrated prima facie that, prior to the Muco closing, the Supplemental Declaration was delivered to Pacht as the attorney for 60th Court, executed by 60th Court, and brought to the Muco closing by Pacht for the purpose of having it recorded. Pacht testified at his deposition that RRS had no obligation to record the Supplemental Declaration.

In opposition, 60th Court has failed to raise a triable issue of fact. In regard to the first claim of negligence, 60th Court did not submit evidence sufficient to create a triable issue of fact concerning whether there was negligence in the preparation of the Declaration. RRS offered proof that the Declaration was merely a preliminary instrument intended to obtain DOB permits, and 60th Court did not sufficiently rebut this showing. Moreover, even if the Declaration did not fully and accurately state the easement, the Supplemental Declaration did so, and the failure to timely record the Supplemental Declaration was intervening negligence. "An intervening act constitutes a superseding cause sufficient to relieve a defendant of liability if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct" (Fahey v A.O. Smith Corp., 77 AD3d 612, 616 [2d Dept 2010] [internal quotation marks and citations omitted]). There was "a superseding act which breaks the causal nexus" between any breach of the duty of care in the preparation of the Declaration and the injury allegedly sustained by 60th Court (see Derdiarian v Felix Contracting Corp., 51 NY2d 308, 315,[1980]). With respect to the second claim of negligence, 60th Court failed to rebut the prima facie showing made by RRS that it was under no duty to record the Supplement Declaration nor see that it had been recorded.

RSS is entitled to summary judgment dismissing the fourth party complaint brought against it.

The cross claim by RSS, which seeks indemnification and contribution from Pacht, has been rendered moot by the dismissal of the fourth-party complaint against RRS.

Turning to the counterclaim against 60th Court, RRS alleges, [*5]inter alia, that "the failure of the fourth-party plaintiff to duly record the driveway/parking easement prepared by RRS was intentional and willful for the sole purpose of maximizing the sale prices of the homes being sold by the fourth party plaintiff." RRS failed to make a prima facie showing that it can prove such allegations. To the extent that the counterclaim is also for, in effect, sanctions for frivolous conduct in bringing the fourth-party action against RRS, RRS did not successfully show that 60th Court's conduct reached a level at which sanctions are warranted. To the extent that the counterclaim is for attorney's fees, "[u]nder the general rule, attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule" (Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]).

Accordingly, the branch of the motion for summary judgment dismissing the fourth-party complaint brought against fourth-party defendant Rotkrug, Rothkrug & Spector, LLP, is granted, and the branches of the motion for summary judgment on the counterclaim and cross claim asserted by fourth-party defendant Rotkrug, Rothkrug & Spector, LLP, are denied.

This constitutes the decision and order of the court.

Dated: May 2, 2019

Denis J. Butler, J.S.C.