NASON v. Lucas Andino, et al., Defendants-Respondents.

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Supreme Court, Appellate Division, First Department, New York.

Herbert NASON, et al., Plaintiffs-Appellants-Respondents, v. Ivan Stephen FISHER, Defendant-Respondent-Appellant, Lucas Andino, et al., Defendants-Respondents.

Decided: January 16, 2007

MAZZARELLI, J.P., BUCKLEY, GONZALEZ, SWEENY, CATTERSON, JJ. Herbert Nason, New York, appellant-respondent pro se, and for Suzanne Nason, appellant-respondent. Lawrence D. Gerzog, New York, for respondent-appellant and respondents.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered April 25, 2006, which denied plaintiffs' motion for summary judgment for default on the pleadings and granted defendants' cross motion for summary judgment to the extent of dismissing the entire complaint as against defendants Andino and Brito, and all but the second and seventh causes of action against defendant Fisher, unanimously affirmed, without costs.

 Plaintiffs' motion for a default judgment was properly denied in view of the prior order deeming the answer to the amended complaint served nunc pro tunc, and their failure to appeal therefrom.

 There were triable issues of fact with respect to the cause of action for constructive fraud.   Plaintiff Herbert Nason testified that he retained these attorneys based not only on a third party's recommendation, but on defendant Fisher's representation that he was experienced in handling commercial partnership cases (cf. Laub v. Faessel, 297 A.D.2d 28, 745 N.Y.S.2d 534 [2002] ).   The cause of action for false representation in violation of Judiciary Law § 487 was deficient for failure to establish the requisite “chronic or extreme pattern of legal delinquency” (Solow Mgt. Corp. v. Seltzer, 18 A.D.3d 399, 400, 795 N.Y.S.2d 448 [2005], lv. denied 5 N.Y.3d 712, 806 N.Y.S.2d 162, 840 N.E.2d 131 [2005] ), or that such alleged conduct was the proximate cause of any loss (see Jaroslawicz v. Cohen, 12 A.D.3d 160, 783 N.Y.S.2d 467 [2004] ).   The malpractice cause of action was also properly dismissed for failure to establish that the attorneys' conduct was the “but for” cause of any loss (see e.g. Berkowitz v. Fischbein, Badillo, Wagner & Harding, 34 A.D.3d 297, 825 N.Y.S.2d 17 [2006] ), and, in light of the client's admission that the ultimate settlement of his underlying litigation was favorable, that there was any loss at all.   Since the malpractice cause of action was deficient in these respects, it is immaterial that the defendant attorneys' alleged violation of Disciplinary Rules might otherwise constitute some evidence of malpractice (see William Kaufman Org. v. Graham & James, 269 A.D.2d 171, 173, 703 N.Y.S.2d 439 [2000] ).   As to the false imprisonment cause of action, the record reflects that defendants merely sought to prevent plaintiffs from taking attorney work product without payment.

 Summary judgment was properly denied on the cause of action for breach of contract regarding allegedly excessive fees.   The motion court properly employed its own knowledge, expertise and experience in determining that there was an issue of fact regarding the alleged overbillings (see David Realty & Funding, LLC v. Second Ave. Realty Co., 26 A.D.3d 257, 809 N.Y.S.2d 81 [2006], lv. denied 7 N.Y.3d 705, 819 N.Y.S.2d 872, 853 N.E.2d 243 [2006] ).

We have considered the parties' other contentions for affirmative relief and find them unavailing.