FKB's Andrew S. Kowlowitz and Nicholas Melissinos win appeal in the Appellate Division, First Department, unanimously reversing the lower court's denial of a motion to dismiss a legal malpractice action against a real estate attorney. 4/8/2011

FKB's client, a Manhattan-based real estate attorney ("Real Estate Attorney") referred the Plaintiff to a tax attorney ("Tax Attorney") to file a tax abatement application on behalf of the Plaintiff, the owner of certain real property located in New York City. Apparently, the tax abatement application was never property filed, and the time for doing so lapsed. Thus, Plaintiff allegedly "lost" the right to receive a tax abatement for its property.

Subsequently, Plaintiff filed a Complaint against both the Real Estate Attorney and the Tax Attorney. Plaintiff alleged that the defendant attorneys' collective negligence resulted in a waiver of the tax abatement, which resulted in a diminution in value of its real estate. The Complaint contained causes of action for legal malpractice and breach of contract.

FKB filed a pre-answer motion to dismiss the Complaint pursuant to CPLR §3211. FKB argued that Plaintiff could not establish the element of privity; the Real Estate Attorney was never retained to represent Plaintiff in connection with the tax abatement application, but merely acted as a referring attorney. In support of the motion, FKB presented documentation to the Court which established that the Real Estate Attorney did not collect a fee from the Plaintiff, and that co-defendant Tax Attorney filed the faulty tax abatement application. FKB also argued that the claim was otherwise time-barred pursuant to CPLR §214[6]; the original tax-abatement application was filed more than three (3) years prior to filing of the legal malpractice action.

On December 29, 2009, Hon. Emily Jane Goodman, J.S.C. (New York County Supreme Court) issued an Order denying the Real Estate Attorney's motion to dismiss, finding that issues of fact existed concerning whether the Real Estate Attorney assisted in the tax abatement application. FKB filed an appeal of the decision to the Appellate Division, First Department.

On appeal before the Appellate Division, First Department, FKB argued that the lower court erred in denying the motion to dismiss. FKB argued that the documentation conclusively established that the appellant, Real Estate Attorney, did not perform legal services in connection with the underlying tax abatement application. FKB argued that, therefore, Plaintiff's claim failed on the basis of a lack of privity. FKB also argued that the lower court's Order warranted reversal because the legal malpractice action was time-barred.

Following oral argument, the First Department issued a Decision on April 7, 2011, granting the Real Estate Attorney's appeal and unanimously reversing the lower court's denial of the Real Estate Attorney's motion to dismiss. The First Department found that documentary evidence undermined Plaintiff's claims and demonstrated that no attorney-client existed by Plaintiff and the Real Estate Attorney with respect to the underlying tax abatement application. The First Department also found that although Plaintiff purportedly paid the Real Estate Attorney a retainer fee, the entire fee was forwarded to the Tax Attorney who admitted to representing Plaintiff in connection with the tax abatement application. Lastly, the First Department ruled that Plaintiff's legal malpractice claim was barred by the statute of limitations.

The appellate motion papers were drafted by Andrew S. Kowlowitz and Nicholas Melissinos, and the appeal was argued by Andrew S. Kowlowitz. The Opinion is reported at 2011 WL 1312337.

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