SALYAMOV FEA v. LYHOVSKY (2017)

Zafar SALYAMOV, individually and as President and sole shareholder of FEA 23rd Inc., Plaintiff–Respondent, v. Ben LYHOVSKY, etc., Defendant–Appellant.

Decided: February 07, 2017

TOM, J.P., RENWICK, SAXE, FEINMAN, GESMER, JJ.

Steinberg & Cavaliere, LLP, White Plains (Steven A. Coploff of counsel), for appellant. Leon I. Behar, P.C., New York (Mark Balken of counsel), for respondent.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered July 25, 2016, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiff asserts a legal malpractice claim based on defendant's alleged failure to confirm that a sublessor of premises in which plaintiff wished to operate a business had the owner's consent to assign the sublease at issue. However, there was no assignment of the sublease; the subtenant was a corporation whose stock plaintiff purchased in the transaction at issue. Further, it is undisputed that the master lease allowed the sublessor to sublet the premises without the owner's consent.

Plaintiff's additional theory of liability, that defendant failed to ascertain the status of the master lease, was improperly raised for the first time in opposition to defendant's motion for summary judgment (see Atkins v. Beth Abraham Health Servs., 133 AD3d 491 [1st Dept 2015] ).

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