RIVIERA PROPERTY HOLDINGS, LLC, Plaintiff, v. FERBER CHAN ESSNER AND COLLER, LLP, and David I. Ferber, Defendants.
Plaintiff limited liability company sues to recover damages for legal malpractice by defendant Ferber and his law firm, defendant Ferber Chan Essner and Coller, LLP, when representing plaintiff in the purchase of a condominium unit from nonparty sponsor Madison Park Group Owner LLC, of which nonparty Slazer Enterprises, LLC, was the majority owner. Its controlling members in turn were nonparties Marc Jacobs and Ira Shapiro.
In an order January 14, 2013, the court denied defendants' motion to dismiss the complaint. Defendants now move for summary judgment dismissing the complaint. C.P.L.R. § 3212(b). Plaintiff cross-moves for summary judgment on defendants' liability and plaintiff's damages for the claimed malpractice. Id. For the reasons explained below, the court denies defendants' motion, grants plaintiff's cross-motion to the extent of awarding summary judgment on defendants' liability, and otherwise denies plaintiff's cross-motion. C.P.L.R. § 3212(b) and (e).
II. SUMMARY JUDGMENT STANDARDS
To obtain summary judgment, the moving parties must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039, 1043, 33 N.Y.S.3d 853, 53 N.E.3d 730 (2016); Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49, 19 N.Y.S.3d 488, 41 N.E.3d 353 (2015); Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 734, 985 N.Y.S.2d 448, 8 N.E.3d 823 (2014); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 (2012). If the moving parties fail to satisfy this standard, the court must deny summary judgment despite any insufficiency in the opposition. Voss v. Netherlands Ins. Co., 22 N.Y.3d at 734, 985 N.Y.S.2d 448, 8 N.E.3d 823; Vega v. Restani Constr. Corp., 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240; Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735, 853 N.Y.S.2d 526, 883 N.E.2d 350 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384, 795 N.Y.S.2d 502, 828 N.E.2d 604 (2005). Only if the moving parties meet their initial burden, does the burden shift to an opposing party to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763, 27 N.Y.S.3d 468, 47 N.E.3d 747 (2016); Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP, 26 N.Y.3d at 49, 19 N.Y.S.3d 488, 41 N.E.3d 353; Morales v. D & A Food Serv., 10 N.Y.3d 911, 913, 862 N.Y.S.2d 449, 892 N.E.2d 842 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744, 787 N.Y.S.2d 215, 820 N.E.2d 859 (2004).
In a stipulation dated April 14, 2016, the parties stipulated to the authenticity and admissibility of the condominium's offering plan, the form purchase agreement for the unit plaintiff was to purchase, the second and third riders to the agreement, and emails between Ferber and Neil Yaris, one of plaintiff's members. In evaluating the evidence for purposes of the motion and cross-motion, the court construes the evidence in the light most favorable to the opposing parties. De Lourdes Torres v. Jones, 26 N.Y.3d at 763, 27 N.Y.S.3d 468, 47 N.E.3d 747; Vega v. Restani Constr. Corp., 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 37, 790 N.Y.S.2d 74, 823 N.E.2d 439 (2004).
III. PLAINTIFF'S LEGAL MALPRACTICE CLAIM
Section 4.1 of the purchase agreement provided that the condominium unit's purchase price was $9,850,000.00 and that the deposit was $985,000.00, 10% of the purchase price. In connection with the purchase, plaintiff, whose members were nonparties Neil Yaris, Alan Green, and Wendy Maitland, executed the second and third riders to the purchase agreement regarding the 10% deposit required by the agreement. The riders provided for payment of the deposit to the sponsor and its controlling owners, instead of the escrow agent as the purchase agreement specified. Specifically, the second rider required plaintiff to pay a non-refundable deposit of 1% of the purchase price to the sponsor itself. The third rider required plaintiff to pay a deposit of the remaining 9% of the purchase price by making a loan to the sponsor's majority owner and the majority owner's individual members Marc Jacobs and Ira Shapiro.
Plaintiff contends that defendants committed legal malpractice by failing to advise plaintiff that the arrangement to pay the deposit directly to the sponsor and its controlling entity and individuals instead of to an escrow agent was void under the applicable statute and regulations. NY Gen. Bus. Law (GBL) § 352–h; 13 N.Y.C.R.R. § 20.3(o)(2) and (3)(xii). Defendants do not dispute that, had plaintiff's deposit complied with the law, plaintiff would have recouped its deposit from the escrow agent when plaintiff invoked its right to rescind the purchase and the sale never closed. Defendants contend that the statute and regulations were inapplicable and that plaintiff's members were aware that the deposit arrangement with the sponsor posed heightened risks.
To establish legal malpractice, plaintiff must demonstrate that defendants failed to use the ordinary reasonable skill and knowledge of members of the legal profession and that the breach proximately caused plaintiff actual, ascertainable damages. Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d at 49, 19 N.Y.S.3d 488, 41 N.E.3d 353; Dombrowski v. Bulson, 19 N.Y.3d 347, 350, 948 N.Y.S.2d 208, 971 N.E.2d 338 (2012). Plaintiff establishes proximate cause by demonstrating that plaintiff would not have sustained ascertainable damages but for defendants' negligence. Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d at 50, 19 N.Y.S.3d 488, 41 N.E.3d 353; LaRusso v. Katz, 30 A.D.3d 240, 243, 818 N.Y.S.2d 17 (1st Dep't 2006); Brooks v. Lewin, 21 A.D.3d 731, 734, 800 N.Y.S.2d 695 (1st Dep't 2005). See Stackpole v. Cohen, Ehrlich & Frankel, LLP, 82 A.D.3d 609, 610, 920 N.Y.S.2d 31 (1st Dep't 2011).
For defendants to prevail by summary judgment, they must show that they advised plaintiff with the due diligence and skill of members of the legal profession or that a breach of that standard was not the proximate cause of plaintiff's damages. Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d at 50, 19 N.Y.S.3d 488, 41 N.E.3d 353. While defendants' failure to advise plaintiff of an inapplicable statute or regulation would not support a legal malpractice claim, Gabrielli v. Dobson & Pinci, 51 A.D.3d 571, 572, 859 N.Y.S.2d 59 (1st Dep't 2008), defendants fail to show that the statute or regulations on which plaintiff relies did not apply. See Lichtenstein v. Willkie Farr & Gallagher LLP, 120 A.D.3d 1095, 1098, 992 N.Y.S.2d 242 (1st Dep't 2014).
IV. DEFENDANTS' INADEQUATE ADVICE TO PLAINTIFF
A. Whether Plaintiff's Purchase Was Through a Public Offering
Defendants present the affidavit of Kenneth Jacobs, a real estate attorney, who reviewed the evidence presented and concluded that GBL § 352–h and the regulation that implements the statute did not apply because the securities for the condominium had not been offered to the public. Part of this evidence on which defendants rely is the deposition testimony by Susan Green, a real estate broker on site to facilitate unit sales, that plaintiff's purchase of a unit was pursuant to a “friends and family” deal available to her as a broker on site. Aff. of Matthew K. Flanagan Ex. E, at 49. This deal permitted her to contact friends and family about purchasing units before sales were offered to the public, enabling the early purchasers to pay the original price, which was lower than after sales were publicized.
To determine whether an offering of condominium units for sale is public, the court considers the offering's circumstances, including the number of purchasers, their relationship to each other and to the sponsor, the information about the sponsor available to purchasers, and whether their relationship with the sponsor substituted for the statutory protections. People v. Landes, 84 N.Y.2d 655, 661–62, 621 N.Y.S.2d 283, 645 N.E.2d 716 (1994). A small number of investors and lack of advertising indicate that an offering is not public. Roni LLC v. Arfa, 74 A.D.3d 442, 443, 903 N.Y.S.2d 352 (1st Dep't 2010), aff'd, 18 N.Y.3d 846, 848–49, 939 N.Y.S.2d 746, 963 N.E.2d 123 (2011).
Susan Green's testimony regarding use of the “friends and family” deal does not indicate that it was necessarily an insider deal. Her testimony described both how she was permitted to implement the same process for purchase of the building's units for any “friends,” who were undefined, as well as family members, and how other brokers, including Wendy Maitland, were permitted to do likewise.
Nor does the deposition testimony by Neil Yaris, Alan Green, and Wendy Maitland, who formed plaintiff for the purpose of purchasing the unit, undermine the offering's public character, as their testimony nowhere indicates a long or close relationship or a history of many past dealings either among themselves or with the sponsor. People v. Landes, 84 N.Y.2d at 662, 621 N.Y.S.2d 283, 645 N.E.2d 716. The testimony by Neil Yaris and Alan Green indicated a desire to work with the sponsor, but not any familiarity with the sponsor or its managers or members. See id. at 663, 621 N.Y.S.2d 283, 645 N.E.2d 716. Although Wendy Maitland worked as a broker for Brown Harris Stevens, which had entered an exclusive sales agreement with Slazer Enterprises, she largely left negotiations for the purchase of plaintiff's unit to Neil Yaris and Alan Green. Finally, the testimony by all three of plaintiff's members revealed no knowledge of the purchasers of any other units in the building. See id. In sum, although factual issues whether the offering was public would preclude summary judgment in plaintiff's favor, Clark Const. Corp. v. BLF Realty Holding Corp., 54 A.D.3d 604, 605, 863 N.Y.S.2d 674 (1st Dep't 2008), defendants' evidence, recounted above, shows no such issues.
B. GBL § 352–h's Further Applicability to Plaintiff's Circumstances
Attorney Jacobs also concludes that GBL § 352–h's intent was to protect sponsors, not purchasers like plaintiff. The best indicator of the statute's intent is its terms, which the court must construe to effectuate its plain meaning. Albany Law School v. New York State Off. of Mental Retardation & Dev. Disabilities, 19 N.Y.3d 106, 120, 945 N.Y.S.2d 613, 968 N.E.2d 967 (2012); Yatauro v. Mangano, 17 N.Y.3d 420, 426, 931 N.Y.S.2d 36, 955 N.E.2d 343 (2011); DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653, 660, 827 N.Y.S.2d 88, 860 N.E.2d 705 (2006). If the statute's terms are clear, resort to other means of interpreting the statute is unnecessary. Amorosi v. South Colonie Ind. Cent. School Dist., 9 N.Y.3d 367, 373, 849 N.Y.S.2d 485, 880 N.E.2d 6 (2007); Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98, 107, 667 N.Y.S.2d 327, 689 N.E.2d 1373 (1997); City of New York v. Stringfellow's of NY, 253 A.D.2d 110, 116, 684 N.Y.S.2d 544 (1st Dep't 1999). GBL § 352–h expressly prohibits plaintiff purchaser's arrangement with the sponsor regarding payment of the deposit. GBL Article 23–A's companion statutes, moreover, impose requirements on the sponsor to protect condominium unit purchasers by disclosing the risks of the purchase and thus allowing purchasers to analyze those risks. East Midtown Plaza Hous. Co., Inc. v. Cuomo, 20 N.Y.3d 161, 169, 957 N.Y.S.2d 644, 981 N.E.2d 240 (2012).
GBL § 352–h and 13 N.Y.C.R.R. § 20.3 in fact limit their applicability to the circumstances specified in GBL § 352–e(1) or 13 N.Y.C.R.R. § 20.1(a): protecting the public against fraudulent exploitation in the purchase of securities. GBL § 352–e(1)(a); East Midtown Plaza Hous. Co., Inc. v. Cuomo, 20 N.Y.3d at 169–70, 957 N.Y.S.2d 644, 981 N.E.2d 240. Yet defendants fail to negate those narrowly drawn circumstances or to demonstrate otherwise that they bore no obligation to advise their client of the applicable law. See Serradilla v. Lords Corp., 50 A.D.3d 345, 347, 855 N.Y.S.2d 99 (1st Dep't 2008).
C. Plaintiff's Awareness of the Deposit Arrangement's Implications
At most, defendants' evidence demonstrates plaintiff's awareness of an increased risk in proceeding as plaintiff did, but not an awareness of the statutory and regulatory prohibition of which defendants failed to advise plaintiff. See Ableco Fin. LLC v. Hilson, 109 A.D.3d 438, 438, 970 N.Y.S.2d 775 (1st Dep't 2013). Plaintiff's awareness of a risk posed by the deal plaintiff negotiated with the sponsor, even if offset by potential benefits such as the interest on the loan, does not absolve defendants of their failure to advise plaintiff regarding the statute and regulation of which plaintiff was unaware: an unawareness defendants never dispute. See Garten v. Shearman & Sterling LLP, 102 A.D.3d 436, 437–38, 958 N.Y.S.2d 107 (1st Dep't 2013). Ferber attests merely that he knew of the statute, but did not discuss it with Yaris, plaintiff's member negotiating the purchase, because the statute was inapplicable. Ferber never contradicts Yaris's deposition testimony that Yaris did not know that a statute voided the payment of the deposit through the loan transaction and hence the purchase agreement's protection against loss of the deposit.
Defendants thus fail to meet their burden of demonstrating entitlement to summary judgment based on their lack of professional negligence. See Fielding v. Kupferman, 104 A.D.3d 580, 580, 961 N.Y.S.2d 429 (1st Dep't 2013). On the other hand, given the absolute statutory and regulatory prohibition of the arrangement into which plaintiff and the sponsor entered, contrary to the purchase agreement, defendants' failure to advise plaintiff of the applicable statute and regulation departed from the standard of professional care. Benitez v. United Homes of NY, LLC, 142 A.D.3d 867, 867, 38 N.Y.S.3d 26 (1st Dep't 2016). Although conflicting testimony would raise factual issues precluding summary judgment on plaintiff's legal malpractice claim, Silva v. Worby, Groner, Edelman, LLP, 54 A.D.3d 634, 634, 864 N.Y.S.2d 23 (1st Dep't 2008), defendants fail to show any such dispute. See SS Marks LLC v. Morrison Cohen LLP, 133 A.D.3d 441, 441, 18 N.Y.S.3d 851 (1st Dep't 2015).
V. CAUSATION OF PLAINTIFF'S CLAIMED DAMAGES
Yaris's uncontradicted affidavit that he would not have agreed to the terms of the transaction he entered for plaintiff, had he known that a statute and regulation prohibited the transaction on those terms, establishes that defendants' failure to provide that advice proximately caused plaintiff's damages from the transaction. Russo v. Rozenholc, 130 A.D.3d 492, 497, 13 N.Y.S.3d 391 (1st Dep't 2015). See Heritage Partners, LLC v. Stroock & Stroock & Lavan LLP, 133 A.D.3d 428, 429, 19 N.Y.S.3d 511 (1st Dep't 2015); Candela Entertainment, Inc. v. Davis & Gilbert, LLP, 126 A.D.3d 656, 656, 7 N.Y.S.3d 62 (1st Dep't 2015); Stackpole v. Cohen, Ehrlich & Frankel, LLP, 82 A.D.3d at 610, 920 N.Y.S.2d 31. Defendants neither dispute that plaintiff retained them to represent it in purchasing the condominium unit and thus to provide advice applicable to the purchase, nor contradict Yaris's testimony that he would have followed any advice by plaintiff's attorneys to keep its deposit in escrow.
For plaintiff to recover its damages caused by legal malpractice, the damages sustained must be more than mere speculation. Gallet, Dreyer & Berkey, LLP v. Basile, 141 A.D.3d 405, 406, 35 N.Y.S.3d 56 (1st Dep't 2016); Heritage Partners, LLC v. Stroock & Stroock & Lavan LLP, 133 A.D.3d at 428, 19 N.Y.S.3d 511; Engelke v. Brown Rudnick Berlack Israels LLP, 111 A.D.3d 444, 444, 975 N.Y.S.2d 12 (1st Dep't 2013); Hass & Gottlieb v. Sook Hi Lee, 55 A.D.3d 433, 433, 866 N.Y.S.2d 72 (1st Dep't 2008). Defendants' failure to advise plaintiff of the impact of the statute and regulation transformed plaintiff's non-refundable deposit into a gift and the loan into a simple loan, instead of a deposit toward purchase of the unit. The failure to place the deposit into escrow eliminated any recourse for plaintiff to recoup its deposit. Plaintiff's loss of its deposit and its expenses in endeavoring to recover the deposit constitute its damages. See Hass & Gottlieb v. Sook Hi Lee, 55 A.D.3d at 433, 866 N.Y.S.2d 72.
Defendants claim plaintiff's damages are attributable to its own conduct because (1) plaintiff would have prevented any damages had it required the sponsor to place the deposit into escrow under the purchase agreement; (2) the promissory note for the loan to the sponsor's controlling owners was enforceable by plaintiff; and (3) it obtained a $1,083,700.14 judgment against them. First, plaintiff's damages are not attributable solely to its own conduct in negotiating the deal, because plaintiff demonstrates without contradiction that it would have required the sponsor to place the deposit into escrow under the purchase agreement had defendants advised plaintiff of the legal requirement to do so. See Kodsi v. Gee, 100 A.D.3d 437, 438, 954 N.Y.S.2d 16 (1st Dep't 2012); Lederer de Paris Fifth Ave., Inc. v. Jordan & Hamburg, LLP, 57 A.D.3d 229, 229, 869 N.Y.S.2d 36 (1st Dep't 2008). Even assuming plaintiff's members were sophisticated businesspersons, thus appreciating the business risks, albeit not the illegalities, any negligence on their part in proceeding despite business risks would bear only on plaintiff's failure to mitigate its damages. Mandel, Resnik & Kaiser v. E.I. Elecs., Inc., 41 A.D.3d 386, 388, 839 N.Y.S.2d 68 (1st Dep't 2007).
Plaintiff's ability to recover its deposit based on the promissory note by Slazer Enterprises, Marc Jacobs, and Ira Shapiro and plaintiff's judgment against them again bears on plaintiff's mitigation of its damages or failure to mitigate, which is defendants' burden to establish. Assouline Ritz LLC v. Edward I. Mills & Assoc., Architects, P.C., 91 A.D.3d 473, 474, 937 N.Y.S.2d 11 (1st Dep't 2012); Lindenman v. Kreitzer, 7 A.D.3d 30, 35, 775 N.Y.S.2d 4 (1st Dep't 2004). See Corwin v. City of New York, 141 A.D.3d 484, 490, 36 N.Y.S.3d 118 (1st Dep't 2016); LaSalle Bank, N.A. v. Nomura Asset Capital Corp., 72 A.D.3d 409, 411, 899 N.Y.S.2d 15 (1st Dep't 2010). Plaintiff's failure to recover its deposit based on the promissory note and judgment does not bar plaintiff from any recovery, but simply may reduce the amount of plaintiff's recovery. Assouline Ritz LLC v. Edward I. Mills & Assoc., Architects, P.C., 91 A.D.3d at 475, 937 N.Y.S.2d 11.
This concept is distinct from collectibility, which pertains to the recovery plaintiff claims it lost through defendants' negligence. Lindenman v. Kreitzer, 105 A.D.3d 477, 478–79, 964 N.Y.S.2d 87 (1st Dep't 2013); Cosentino v. Sullivan Papain Block McGrath & Cannavo, P.C., 95 A.D.3d 603, 603, 943 N.Y.S.2d 534 (1st Dep't 2012). Defendants do not dispute that plaintiff would have recovered the deposit had plaintiff not relinquished the purchase agreement's protection. As long as plaintiff establishes an entitlement to damages from the lost deposit, moreover, any issue as to noncollectibility may be established in a separate hearing. Lindenman v. Kreitzer, 105 A.D.3d at 479, 964 N.Y.S.2d 87.
VI. AMOUNT OF PLAINTIFF'S DAMAGES
The extent to which plaintiff may have mitigated its damages, however, as well as the imprecision of plaintiff's losses based on the admissible evidence in the current record, precludes summary judgment on damages. While defendants bear the burden to show (1) the extent to which plaintiff mitigated its damages or (2) its failure to make diligent efforts to mitigate its damages and the extent to which such efforts would have reduced its loss, defendants raised this defense in their answer. Then, in support of their motion and in opposition to plaintiff's cross-motion for summary judgment, they presented plaintiff's judgment against the sponsor's owners. Corwin v. City of New York, 141 A.D.3d at 490, 36 N.Y.S.3d 118; Mitchell v. Fidelity Borrowing LLC, 40 A.D.3d 557, 558, 837 N.Y.S.2d 78 (1st Dep't 2007). Since the object of compensatory damages is simply to make defendants' injured client whole, e.g., Campagnola v. Mulholland, Minion & Roe, 76 N.Y.2d 38, 42, 556 N.Y.S.2d 239, 555 N.E.2d 611 (1990), now, for plaintiff to establish entitlement to a specified amount of damages, plaintiff must both specify its calculation of damages and show that it may not be reduced by any part of that judgment. Mitchell v. Fidelity Borrowing LLC, 40 A.D.3d at 558, 837 N.Y.S.2d 78. Yet plaintiff presents only a United States Bankruptcy Court order dated September 14, 2012, discharging Marc Jacobs's debt, but nothing regarding Slazer Enterprises or Ira Shapiro except various judgments against these other two debtors, not necessarily evidence of their inability to pay plaintiff's judgment.
Even if the $985,000.00 deposit amount is not reduced by plaintiff's ability to mitigate its damages, however, plaintiff fails to establish conclusively the date when it would have been entitled to a refund of a deposit paid to the escrow agent, to determine the interest owed. While plaintiff also is entitled to recover it payments to defendants for their negligent services, the invoices for their services that plaintiff presents are not authenticated on personal knowledge and in any event do not show that plaintiff actually paid the invoices; when, to determine the interest owed; or that all of them are for the services that constituted defendants' malpractice. Campagnola v. Mulholland, Minion & Roe, 76 N.Y.2d at 43–44, 556 N.Y.S.2d 239, 555 N.E.2d 611. The invoices for services by plaintiff's current attorney that plaintiff presents again do not show when payment was due or made, to determine the interest owed. For these reasons, at minimum, a trial is necessary to determine how much, if any, must be deducted for mitigation of plaintiff's damages or for failure to mitigate its damages and, even if no deductions are warranted, the precise amounts of its losses.
For all the above reasons, the court denies defendants' motion for summary judgment, C.P.L.R. § 3212(b); grants plaintiff's cross-motion for summary judgment on defendants' liability, including their causation of damages; but denies plaintiff's cross-motion for summary judgment on the amount of its damages. C.P.L.R. § 3212(b) and (e); Benitez v. United Homes of NY, LLC, 142 A.D.3d at 867, 38 N.Y.S.3d 26; Mitchell v. Fidelity Borrowing LLC, 40 A.D.3d at 558, 837 N.Y.S.2d 78. See Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 443, 835 N.Y.S.2d 534, 867 N.E.2d 385 (2007). The parties shall appear for a pretrial conference August 15, 2017, at 9:30 a.m., in Part 46. 22 N.Y.C.R.R. § 202.26. This decision constitutes the court's order and judgment on liability.
Lucy Billings, J.