Two Appellate Rulings On Legal Malpractice Involving Real Estate Closings
The Appellate Division, Second Department issued two rulings this month arising out of motions to dismiss legal malpractice claims: one case from Rockland County favorable for attorneys and the other from Brooklyn favoring clients. In the Rockland County case the plaintiff claimed that they retained the attorney to represent them on the closing of a loan in 2009. The alleged malpractice was in failing to negotiate security from the buyer in the form of a mortgage. The legal malpractice suit was filed more than three years after the closing. The Appellate Court agreed that despite ongoing communications between the attorney and client after the closing - the continuous representation toll only applies "where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim". The case was dismissed as time barred by the statute of limitations. Scalfani v Kahn, 2019 WL 575614
In the second case a law firm was sued by the purchaser of a condominium in Brooklyn which had an illegal second level. The Appellate Court held that the plaintiff raised a triable issue of fact in alleging the attorney was negligent for failing to advise the client, prior to purchase, that there was no certificate of occupancy for the second level and that the condo offering plan did not authorize it either. Though the law firm could argue that the client knew or should have known of an illegal 8th floor---they will have to tell it to a jury. Bakcheve v Law Offices of Stein & Associates, 2019 WL 454458
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