FKB wins motion to dismiss legal malpractice action against real estate lawyer in Bronx County.8/29/2008

Hon. George D. Salerno, J.S.C. granted FKB's motion to dismiss a legal malpractice action against our law firm client in connection with a 2004 aborted sale of certain Bronx County property. The plaintiff/seller claimed that the real estate attorney negligently permitted the buyer to secure an extension of the closing date beyond the time permitted under the contract of sale. Following the seller's failure to proceed to close the transaction, the presumptive purchaser brought a specific performance action, which lasted for several months. Although the plaintiff/seller ultimately prevailed in the specific performance suit, he nevertheless brought a legal malpractice action, claiming that his former lawyers' agreement to extend the closing date and not reference the closing as "time of the essence" prejudiced him as it gave the purchaser the opportunity to file a specific performance suit and argue that the plaintiff/seller unreasonably withdrew from the deal. The plaintiff claimed that the specific performance suit prevented the sale of the property to the highest bidder for the duration of the lawsuit, causing consequential lost profit losses.

In dismissing the action, Justice Salerno agreed with FKB's position that the plaintiff's claim of "lost profits" was speculative, and even if the defendant real estate law firm agreed to adjourn the closing without permission, the additional time period was "a mere two weeks." Moreover, Justice Salerno found that, in any event, "a real estate attorney's agreement to a short adjournment of a closing date is an entirely reasonable course of conduct- to avoid unnecessary litigation in our congested courts, and to attempt to consummate a real estate deal." Further, in dismissing the legal malpractice action, Justice Salerno agreed with FKB's argument that our client "[did] not control what [the buyer's] attorney chose to do in an attempt to enforce their contractual rights."

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