Legal Malpractice

Opposing a Motion for Summary Judgment by Plaintiff in a Legal Malpractice Case

By (Andrew Lavoott Bluestone)

In Felt v. Van Alstyne we see an interesting real estate-legal malpractice case, one which is, unfortunately, no so uncommon.  Plaintiff owns 51 acres of property in Greene County and wants to sell a portion, 6.1 acres.  The balance of 45 acres or so, which is unimproved, is to be sub-divided and kept.  Defendant attorney is hired to do the closing.

What is a closing?  It is the sale transaction, and the attorney for a party is supposed to make sure that the transaction actually follows the intent of the parties.  Here everything went wrong.  Now, plaintiff, who has sued the buyers in a separate action, must sue the attorney and the title closing company over this mistake:  the deed did not have a description of the premises to be sold attached to it.  Imagine that, the deed simply recited all 51 acres, when in fact only 6 acres were to be sold.

The defense?  That's how it's done here!    The lesson to be taken from this case, is that when plaintiff moves for summary judgment, and includes the affidavit of an expert, defendant better have one too.  The affidavit of co-defendant was simply not enough.  Result?  Plaintiff is granted partial summary judgment with the damages to await the outcome of another trial, presumably against the buyer.

Full post as published by New York Attorney Malpractice Blog on September 16, 2009 (boomark / email).