Monday, October 3, 2016

Summary judgment on a legal malpractice claim.

Practice point:  The Appellate Division affirmed denial of defendant law firm's motion to dismiss. The bank made a prima facie showing that the law firm departed from the standard of care in connection with the closing of a residential real estate mortgage loan to plaintiff by failing to advise that the property lacked a certificate of occupancy, failing to advise of the risk of funding the loan under these circumstances, and failing to confirm that plaintiff contributed 3% of her own funds toward closing, a condition of the loan. The law firm, which did not submit an expert's opinion in opposition, failed to raise a triable issue.

Student note:  The motion court properly considered the affidavit of the bank's legal expert concerning the duty of care an attorney owes to a mortgage-lender client.  The bank's closer, who was responsible for ensuring that the closing documents were in order, clearly had knowledge of the facts, and, therefore, was qualified to submit an affidavit in support of the bank's summary judgment motion, pursuant to CPLR 3212[b]. The closer's lack of knowledge concerning the underwriting process is irrelevant to the claim.

Case:  Benitez v. United Homes of N.Y., LLC, NY Slip Op 06153 (1st Dep't September 27, 2016)

Here is the decision.

Tomorrow's issue: A claim for injuries allegedly sustained while conducting a repair work estimate.