Opinion
18833/11
05-09-2019
Albert MUCO and Rajmonda Muco, Plaintiffs, v. Tarzan SADIKU, Miranda Sadiku, and Kreshnik Sadiku, 60th Court Maspeth LLC, Eyal Shachi individually and as manager of 60th Court Maspeth LLC, Judith Shachi individually and as manager of 60th Court Maspeth LLC, Danny Zivan individually and as manager of 60th Court Maspeth LLC and Trinity Abstract LLC, Defendants. Tarzan Sadiku, Miranda Sadiku and Kreshnik Sadiku, Third-Party Plaintiffs, 60th Court Maspeth LLC, Eyal Shachi, Ridge Abstract Corp., Old Republic National Title Insurance Company and Colleran, O'Hara & Mills, PC., Third-Party Defendants. 60th Court Maspeth LLC, Fourth-Party Plaintiff, Robert A. Pacht, Esq., Rothkrug, Rothkrug & Spector, LLP, Fourth-Party Defendants.
The following papers numbered 1 to 13 were read (1) on this motion by defendant Trinity Abstract Corp. for summary judgment dismissing the complaint and all cross claims against it, (2) on this cross motion by fourth party defendant Robert A. Pacht, Esq., for summary judgment dismissing the fourth party complaint and all other claims brought against him, and (3) on this cross motion by third party defendant Colleran, O'Hara & Mills P.C. for, inter alia, summary judgment dismissing the third party complaint against it.
Papers
Numbered
Notice of Motion, Affidavit, Exhibits 1
Notice of Cross Motion, Affidavits, Exhibits 2-3
Answering Affidavits, Exhibits 4-7
Reply Affidavits 9-10
Memorandum of Law 11-13
Upon the foregoing papers, it is ordered that the motion by defendant Trinity Abstract Corp. for summary judgment dismissing the complaint and all cross claims asserted against it is denied. The branch of the cross motion by fourth party defendant Robert A. Pacht, Esq., for an order extending his time to move for summary judgment is denied as moot. The branch of the cross motion by fourth party defendant Robert A. Pacht for summary judgment dismissing the fourth party complaint and all other claims brought against him is denied. The branch of the cross motion by third party defendant Colleran, Ohara & Mills, PC, for an order extending its time to move for summary judgment is granted. The branch of the cross motion by third party defendant Colleran, Ohara & Mills, PC, for summary judgment dismissing the third party complaint against it is denied. The branch of the cross motion by third party defendant Colleran, Ohara & Mills, PC, for a severance is denied.
I. Basic Facts and Allegations
This action concerns two premises: (1) 60-28 60th Place, Maspeth, New York (the Muco premises or the first premises) and (2) 60-34 60th Place, Maspeth, New York (the Sadiku premises or the second premises). The Mucos claim that the Sadikus are depriving them of an alleged easement burdening the latter's property which permits the former to use two parking spaces.
Defendant/third party defendant/fourth party plaintiff 60th Court Maspeth LLC (60th Court) is the developer and seller of the two subject premises. Defendant 60th Court hired Vintage Homes, Inc. (Vintage), whose President is Danny Zivan, to serve as a construction manager and representative.
In order to obtain permits to construct the homes on the subject premises, defendant 60th Court had to show it would provide each of them with two off-street parking spaces. The Muco premises was not spacious enough for parking spaces, so defendant 60th Court decided to burden the Sadiku premises with an easement in favor of the Muco premises.
Acting as the representative of 60th Court, Vintage, by Zivan, retained fourth party defendant Rothkrug, Rothkrug & Spector LLP (RRS), a law firm, to prepare an instrument creating a permanent easement benefitting the Muco premises and burdening the Sadiku premises with two parking spaces and a means of access over the latter property from the public street known as 60th Court. RRS alleges that the instrument was merely intended to satisfy NYC Department of Buildings (DOB) requirements concerning construction permits and that the instrument contained no errors of omission or commission.
On February 5, 2009, 60th Court executed a Driveway Space Restrictive Declaration (the Declaration) prepared by RRS. The Declaration provided for an easement allowing ingress and egress over the Sadiku property to and from 60th Court, but did not expressly provide that the current and future owners of the Muco premises were to have exclusive use of two parking spaces on the Sadiku premises. The Declaration was recorded against the two properties on February 17, 2009 in the City Register's Office.
On or about June 25, 2009, defendant 60th Court, as seller, entered into a contract of sale with plaintiff Albert Muco and plaintiff Rajmonda Muco (the Muco contract) whereby the plaintiffs purchased the first of the subject premises. Fourth party defendant Robert A. Pacht, Esq. represented defendant 60th Court in the transaction. The Muco contract required 60th Court to file prior to the closing of title a Supplemental Driveway Space Restrictive Declaration (Supplemental Declaration) "conveying to Purchasers * * * the absolute right of ingress and egress over the thatched portion and to park two vehicles on Parcel A [the Sadiku premises]* * * *." The Muco contract further provided that the deed to Parcel A "specifically identify said driveway easement running in favor of the Premises [the Muco premises] herein."
Fourth party defendant Robert A. Pacht, Esq., the attorney for 60th Court, agreed to have the Supplemental Declaration recorded against both the Muco premises and the Sadiku premises before title closed on the sale of the Muco premises. In or about November, 2009, RRS, retained by Pacht, prepared a document captioned "Declaration of Maintenance and Easement Agreement" which was intended to be the Supplemental Declaration contemplated by the Muco contract, and 60th Court signed it on November 19, 2009. The Supplemental Declaration was provided to Pacht prior to the closing of title on the Muco premises which occurred on or about November 20, 2009. However, Pacht, or the title company acting on his behalf (defendant Trinity Abstract, LLC), had not recorded the Supplemental Declaration prior to the closing of title as required by the Muco contract, although Trinity Abstract at the closing allegedly charged a fee to do the recording.
After title closed on the Muco premises, defendant Tarzan Sadiku learned that the second premises was also for sale. The Sadiku defendants contacted Ms. Demkowics, a real estate broker, and she showed them the property on at least three separate occasions prior to their purchase of it. Danny Zivan, whose company built the homes, alleges that he was present on at least one of these occasions. Relying on evidence in the record, Trinity states that Demkowics and Zivan explained the parking arrangements to the Sadikus and showed them where the Mucos parked and where they would park if the purchased the home. On the other hand, the Sadikus deny they were informed about the parking arrangements by Demkowics or Zivan.
On August 24, 2010, 60th Court, as seller, entered into a contract for the sale of the second premises to defendant Tarzan Sadiku, defendant Miranda Sadiku, and defendant Kreshnik Sadiku. Pacht represented 60th Court in the transaction. The Sadiku contract prepared by Pacht did not mention that the Mucos had an easement over the Sadiku premises allowing them the exclusive use of two parking spaces on the Sadiku premises along with ingress and egress from 60th Court Road. On or about September 16, 2010, third party defendant Ridge Abstract Corp. provided Pacht with a title report for the Sadiku premises which noted the Declaration but not the Supplemental Declaration. After receiving the title report, Pacht did not inform Ridge Abstract Corp or the attorneys for the Sadikus about the existence of the Supplemental Declaration. On October 4, 2010, at a time when the Supplemental Declaration still had not been recorded against either of the two subject premises, title closed on the Sadkiku premises. In addition to not recording the Supplemental Declaration himself or not seeing that the title company had done so, Pacht allegedly had not specifically identified the driveway easement on the deed given to the Sadikus.
Trinity Abstract alleges that no one gave it the Supplemental Declaration at the closing of the Muco's title.
Trinity Abstract further alleges that none of its employees were present at the Muco closing, although it admits that the Muco closing statement, prepared in advance of the closing, was amended by a handwritten note indicating that defendant 60th Court paid $ 200.00 to record it.
Third party defendant Colleran, O'Hara & Mills PC (COM), a law firm, represented the Sadikus in the purchase of their premises. COM received the title report, which noted the existence of the Declaration, from Ridge Abstract Corp. prior to the closing of title, but COM did not inform the Sadikus about it, nor did they conduct any investigation about it.
II. The Motion by Defendant Trinity Abstract LLC
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact * * *" ( Alvarez v. Prospect Hospital , 68 NY2d 320, 324 [1986] ).
"To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom * * *" ( Solomon v. City of New York, 66 NY2d 1026, 1027 [1985] ; Pasternack v. Lab. Corp. of Am. Holdings , 27 NY3d 817 [2016] ; Montanez v. New York State Elec. & Gas , 144 AD3d 1241 [3d Dept 2016] ; Murray v. New York City Housing Authority , 269 AD2d 288 [1st Dept 2000] ). "It is settled that a duty of reasonable care owed by a tortfeasor to a plaintiff is elemental to any recovery in negligence * * *" ( Miglino v. Bally Total Fitness of Greater New York, Inc. , 92 AD3d 148, 159[2d Dept 2013] ).
The plaintiffs hired defendant Trinity Abstract to conduct a title search for the premises that they eventually purchased. However, defendant 60th Court and/or defendant Pacht, not the plaintiffs, hired defendant Trinity Abstract to record the Supplemental Declaration. Defendant Trinity Abstract argues that therefore it did not breach a duty of care owed to the plaintiffs. The court rejects this argument. It is true that, where a title insurer or its agent contracts to perform services, its liability for negligence in the performance of the services, in the absence of fraud or collusion or other special circumstances, extends only to the individual who contracted for the services (see Sabo v. Alan B. Brill, P.C. , 25 AD3d 420 [1st Dept 2006] ; Velazquez v. Decaudin , 49 AD3d 712[2d Dept 2008] ). However, in the case at bar, the plaintiffs may be able to establish that defendant Trinity Abstract is liable to them on the basis that there was the "functional equivalent of privity" between them. To show such a basis, three conditions must be satisfied: (1) the defendant must have been aware that its work was to be used for a particular purpose or purposes; (2) the defendant must have intended that the other party rely on its work for such purpose or purposes; and (3) the defendant must have shown an understanding of the party's reliance (see Credit All. Corp. v. Arthur Andersen & Co., 65 NY2d 536, amended, 66 NY2d 812 [1985] ; Beck v. Studio Kenji, Ltd. , 90 AD3d 462 [1st Dept 2011] ; Kidd v. Havens , 171 AD2d 336 [4th Dept 1991] ). Liability has been imposed on title companies on the basis of a functional equivalent of privity (see Kidd v. Havens , supra [Title company was liable to purchaser of property for negligence due to its failure to report a mortgage when certifying title, even though title company was not in privity of contract with purchaser and did not know purchaser's identity] ). The plaintiffs have offered sufficient evidence on this motion that they may be able to meet all three prongs of the test and have also made a sufficient showing that they may be able to recover against defendant Trinity Abstract on the basis of a third party beneficiary status. To establish third party beneficiary status, a party must show "(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his benefit and (3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate him if the benefit is lost * * *" ( Burns Jackson Miller Summit & Spitzer v. Lindner , 59 NY2d 314, 336 [1983] ; Mendel v. Henry Phipps Plaza W., Inc., 6 NY3d 783 [2006] ). In the case at bar, the plaintiffs offered sufficient proof on this motion that the contract between Trinity Abstract and Pacht and/or 60th Court requiring the title company to record the Second Declaration was intended for the benefit of the plaintiffs and that the recording was not merely an incidental benefit of the contract.
At best for defendant Trinity Abstract, it merely raised, but did not eliminate, an issue of fact pertaining to whether Pacht provided it with a copy of the Second Declaration so that its recording could be accomplished.
Defendant Trinity Abstract also fails to eliminate the issue of fact pertaining to whether the Sadikus were informed by Zivan and Demkovics about the parking easement before they signed their contract to purchase the second premises. The conflicting testimony in the record in this regard has created issues of fact and credibility which cannot be resolved here (see Charlery v. Allied Transit Corp., 163 AD3d 914 [2d Dept 2018] ; Chimbo v. Bolivar, 142 AD3d 944 [2d Dept 2016] ; Bi Bo Chiu v. Malik , 86 AD3d 548 [2d Dept 2011] ). Moreover, this court has found in a previous decision and order dated March 8, 2012, denying a cross motion for summary judgment made by the defendants that an issue of fact exists as to whether the intent of the Declaration was to create an easement regarding parking spaces. Thus, this court cannot conclude as a matter of law that the proximate cause of the Muco's injury was the knowing, willful violation of their easement rights by the Sadikus rather than a failure to record the Supplemental Declaration. The court notes that there may be more than one proximate cause of a party's injuries ( Gray v. Air Excel Serv. Corp. , ––– AD3d ––––. ––– NYS3d –––– 2019 WL 1646390, [2d Dept 2019] ).
Defendant Trinity Abstract's remaining arguments have no merit, and it is not entitled to summary judgment in its favor.
III. The Cross Motion by Fourth Party Defendant Robert A. Pacht
The court notes initially that the fourth party defendant's time to move for summary judgment was extended by decision and order of this court dated March 18, 2019.
Turning to the branch of Pacht's cross motion for summary judgment dismissing the fourth party complaint brought against him by fourth party plaintiff 60th Court, the attorney for Pacht states that he did not receive opposing papers from the attorney for 60th Court. While the court also has not received opposing papers from 60th Court's attorney, considering the record in this zealously contested matter, the court finds it unlikely that 60th Court has abandoned it claims against Pacht. The fourth party plaintiff did oppose the companion motion brought by the other fourth party defendant, and those opposition papers may have been intended to serve as opposition papers to both motions submitted on the same date. If 60th Court intends to cease the prosecution of the fourth party action against Pacht, he may, if so advised, enter into a stipulation of discontinuance. In any event, "[o]n a motion for summary judgment * * *, it is the proponent who bears the initial burden of coming forward with evidence showing prima facie entitlement to judgment as a matter of law, and, unless that burden is met, the opponent need not come forward with any evidence at all * * *" ( Penava Mechanical Corp. v. Afgo Mechanical Services, Inc. , 71 AD3d 493, 495-496 [1st Dept 2010] ; Correa v. Saifuddin , 95 AD3d 407 [1st Dept 2012] ). Defendant Pacht failed to carry the initial burden.
The fourth party complaint brought against defendant Pacht is for legal malpractice. In an action to recover damages for legal malpractice, "a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages * * *" ( Island Properties & Equities, LLC v. Cox , 93 AD3d 639, 640 [2d Dept 2012] ; McCoy v. Feinman , 99 NY2d 295 [2002] ; Cosmetics Plus Grp., Ltd. v. Traub , 105 AD3d 134 [1st Dept 2013] ; Fireman's Fund Ins. Co. v. Farrell , 57 AD3d 721 [2d Dept 2008] ).
Pacht, denying that his actions or omissions could have been the proximate cause of any injury sustained by the Sadiku's or 60th Court, purports to have made a prima facie showing of entitlement to summary judgment dismissing the fourth party complaint by (1) the submission of evidence in the record that Zivan and Demkowics informed the Sadikus before they closed title about the parking easement and (2) an interpretation of the Declaration as granting a parking easement. As to the first ground, the transcripts of the deposition testimony submitted in support of the cross motion contain conflicting versions of the events that occurred prior to the closing of title on the Sadiku premises, raising triable issues of fact, and, thus, Pacht failed to demonstrate a prima facie entitlement to judgment as a matter of law (see Stafford v. Allied Bldg. Prod. Corp. , 164 AD3d 1398[2d Dept 2018] [failure to make prima facie showing because of conflicting versions of traffic accident] ). As to the second ground, this court has previously held that there is an issue of fact as to the meaning and intent of the Declaration. Moreover, Pacht did not rebut additional allegations of malpractice made against him: (1) that although he received a copy of the title report ordered by the Sadikus before they closed title, he failed to bring to the attention of the title company or the attorney for the Sadikus the existence of the Supplemental Declaration, and (2) that he failed to identify the easement on the deed he drew conveying title to the Sadikus.
Pacht is not entitled to summary judgment dismissing the fourth party complaint and all other claims against him.
IV. The Cross Motion by Third Party Defendant COM
The essential elements of a cause of action for legal malpractice are that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, that the attorney's breach of this duty proximately caused the plaintiff to sustain damages, and that there are actual and ascertainable damages. ( Iannucci v. Kucker & Bruh, LLP, 161 AD3d 959 [2d Dept 2018] ).
"For a defendant in a legal malpractice action to succeed on a motion for summary judgment, evidence must be submitted in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements * * *" ( Shopsin v. Siben & Siben , 268 AD2d 578, 578 [2d Dept 2000] ; Seidman v. Einig & Bush, LLP , 151 AD3d 1095 [2d Dept 2017] ). COM attempted to make a prima facie showing that the Sadikus cannot prove the element of causation. The attempt to demonstrate prima facie that the Sadikus knew about the parking easement because of the alleged conversation with Zivan and Demkowics fails because of the conflicting versions of the pre-sale events submitted in connection with the instant motion practice (see Stafford v. Allied Bldg. Prod. Corp. , supra ). The attempt to make a prima facie showing that the Sadikus cannot prove the element of causation as they had already entered into a binding contract to purchase the premises before receiving a title report fails because of clauses in the contract which arguably (at minimum) give them the right to cancel.
COM did make a prima facie showing that the Sadikus did not sustain any damages. The Sadikus purchased their premises on October 4, 2010 for $ 690,000.00. COM submitted an appraisal of the Sadiku property as encumbered by the parking easement rendered by Victor Schlesinger of Republic Valuations which concludes that on October 4, 2010, the Sadkiu premises were worth $ 690,000.00 even as encumbered by the parking easement.
The burden on COM's cross motion shifted to the Sadiku's, requiring them to submit evidence showing that there is an issue of fact which must be tried (see Alvarez v. Prospect Hospital, supra ). They successfully sustained this burden. In regard to the element of actual and ascertainable damages, the Sadikus submitted an appraisal report from Matthew J. Guzowski, the President of Goodman-Marks Associates, Inc., and an affidavit from him which states: "We have determined that the subject property with the easement in place suffers a diminution in value due to the hypothetical easement being contested." The conflicting affidavits of experts preclude summary judgment (see Haas v. F.F. Thompson Hosp., Inc. , 86 AD3d 913 [4th Dept 2011] ; Florio v. Kosimar, 79 AD3d 625 [1st Dept 2010] ).
COM is not entitled to summary judgment dismissing the third party complaint and other claims against it.
COM is also not entitled to a severance. "[S]everance may be inappropriate where there are common factual and legal issues involved in two causes of action, and the interests of judicial economy and consistency of verdicts will be served by having a single trial * * *" ( Herskovitz v. Klein , 91 AD3d 598, 599 [2d Dept 2012] ). In the case at bar, the causes of action asserted against COM and against other parties present common factual and legal issues involving, inter alia, proximate cause and damages, that make a severance inappropriate. A severance would not serve the interests of judicial economy.
This constitutes the decision and order of the court.