A real estate development company’s legal malpractice claim against a Manhattan law firm cannot survive because the company’s responsive papers to a dismissal motion lacked evidentiary detail, an Appellate Division, First Department panel has ruled.
Any factual question raised goes only to one element of a malpractice claim, proximate causation, and it’s clear that the development company caused its own damages, the panel wrote.
And so the justices said that they were examining the rare case in which proximate cause—generally a question for a fact finder—could be determined as a matter of law.
The appeals panel wrote that real estate developer 180 Ludlow Development LLC had submitted a pleading in response to defendant Olshan Frome Wolosky’s cross-motion for summary judgment, but that its response failed to include key facts.
In describing some of the malpractice lawsuit’s background, the panel explained that Ludlow Development had alleged that Hyman Kindler, as Olshan partner, had been instructed to draft a zoning lot development and easement agreement that would ensure that constructing a 2006 hotel project’s cantilever wouldn’t place an adjoining property in violation of a building code. Ludlow Development further contended that Kindler had done a negligent job in drafting the agreement, the panel and court records said.
The panel then explained that Ludlow’s pleading responsive to Olshan’s summary judgment dismissal motion—in this instance, a verified complaint—never said which employee at Ludlow gave the alleged drafting assignment to Kindler.
Moreover, wrote the unanimous panel, the responsive filing failed to say when Ludlow allegedly gave Kindler agreement-drafting instructions.
“Thus, [the responsive pleading] is lacking in evidentiary detail,” wrote Justices John Sweeny, Judith Gische, Angela Mazzarelli, Troy Webber and Anil Kahn.
In addition, the justices pointed out that evidence in the record, including a June 25, 2007, email from one of Ludlow’s consultants, “supports defendant’s assertion that it was merely the transactional lawyer on plaintiff’s team, and it is undisputed that plaintiff had separate zoning/land use counsel.”
Ludlow never submitted its own affidavit in response to Olshan’s cross-motion for summary judgment, but “even if the parties’ conflicting expert affidavits created an issue of fact as to whether defendant was negligent in its representation, that is only one element of malpractice,” the panel said.
Another element is that the attorney’s breach of the duty to exercise the ordinary lawyerly skill and knowledge “proximately caused plaintiff to sustain actual and ascertainable damages,” the justices wrote, quoting Nomura Asset Capital v. Cadwalader, Wickersham & Taft, 26 N.Y.3d 40, 49 (2015).
Then they said that “while proximate cause is generally a question for the factfinder, it can, in appropriate circumstances, be determined as a matter of law.”
“This is one of these cases, inasmuch as [Ludlow’s] damages were caused by its failure to keep [Olshan] informed and its unilateral decision that a cantilever over a windowed courtyard constituted a violation as defined” in the zoning lot development and easement agreement, wrote the justices in their Tuesday opinion in 180 Ludlow Development v. Olshan Frome Wolosky.
Todd Marcus, a Pryor Cashman partner in New York, represented Ludlow Development in the appeal. He declined to comment, stating in an email that he does not comment on pending litigation. Stephen Jacobs, a Landman Corsi Ballaine & Ford member in New York represented Olshan and could not be reached for comment.