Lawyer Cannot Avoid Malpractice Claim By Arguing That Client Had Access to Sufficient Facts to Evaluate Legal Issue

On April 28, 2020, Justice Masley of the New York County Commercial Division issued a decision in Halperin v. Van Dam, 2020 NY Slip Op. 31301(U), holding that a lawyer cannot avoid a malpractice claim by arguing that the client had access to sufficient facts to evaluate a legal issue, explaining:

To sustain a cause of action for legal malpractice, plaintiff must show that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused the client to sustain actual and ascertainable damages. Failing to advise a client on the risks associated with a transaction and failing to confirm relevant information may form the basis of a legal malpractice claim.

Here, plaintiffs allege that the HH Defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by failing to advise plaintiffs that rooms containing lot-line windows could not be utilized as bedrooms for residential occupancy. Additionally, they allege that the HH Defendants failed to exercise ordinary reasonable skill and knowledge by failing to observe or report that the Managing Agent on behalf of the Apartment Corporation left blank the portion of the Coop/Condo Review Sheet that inquired "Is this a lot-line unit?" and "Which of the windows are affected." Plaintiffs also allege that these breaches proximately caused them to sustain actual and ascertainable damages in the amount of $5,000,000.

Although the HH Defendants submit a diagram of the premises that plaintiffs received prior to signing the Contract of Sale, indicating the presence of lot-line windows, this submission does not utterly refute the legal malpractice claim. Here, on a pre-answer motion to dismiss, the information contained in the diagram cannot, at this stage, be described as explicitly putting plaintiff on notice and not requiring counsel's interpretation of the information. The HH Defendants may not shift to the client the legal responsibility they were specifically hired to undertake. Additionally, the HH Defendants' submission of an email from Steven Halperin allegedly about the Coop/Condo Review Sheet also does not utterly refute the malpractice claim. To the contrary, Steven Halperin states, "If... Marc confirms that he is comfortable with the answers in the questionnaire (I have read them and they seem fine to me), we should be clear to execute the agreement... " Accordingly, the HH Defendants' motion to dismiss the second cause of action on these grounds is denied.

(Internal quotations and citations omitted).

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