On June 30, 2021, the Appellate Division, Second Department overruled a Nassau County Justice and held that a legal malpractice claim could not be dismissed prior to discovery, simply because there was no written retainer agreement. The plaintiff had defaulted on a real estate mortgage resulting in a judgment of foreclosure. The property was sold prior to an auction and the defendant attorney attended the closing on behalf of the buyer, drafted the deeds and acted as the settlement agent--all while the plaintiff and her family continued to occupy the premises. The defendant attorney emphasized that the only one who paid him for his services was the buyer of the property where plaintiff resided.

The defendant attorney claimed he thought the holdover plaintiff was being represented at the closing by the broker. He maintained that he had never represented or given advice to the plaintiff. Nevertheless, the appellate court explained why a motion to dismiss was premature and should not have been granted: "An attorney-client relationship may arise even in the absence of a written retainer agreement, and a court must look to the words and actions of the parties to determine whether such a relationship exists." The defendant attorney will get another chance to move for summary judgment at the conclusion of discovery - or - plead his defense to a jury at trial. Edelman v Berman, 2021 NY Slip Op 04120