Opinion
015931/06.
Decided January 6, 2010.
Upon the foregoing papers, it is ordered that this motion by defendants for an order pursuant to CPLR 3212 granting summary judgment in favor of defendants dismissing the verified complaint against them is granted. Cross motion by the plaintiff for an order granting summary judgment in favor of the plaintiff is denied.
This is an action for legal malpractice arising out of the defendants' representation of the plaintiff in connection with certain real property it owned.
The plaintiff was the owner of five parcels of real property (the Property) that are collectively known as 867 Saw Mill River Road, in the Village of Ardsley and the Town of Greenburgh (Town), New York. At the time that the plaintiff purchased the Property, on or about December 20, 2001, a tax installment agreement dated September 30, 1998, entered into between the plaintiff's seller and the Town pursuant to RPTL § 1184 was in effect. The agreement related to delinquent taxes from prior years on the Property. The tax installment agreement dated September 30, 1998, contained the following language:
"4. FORECLOSURE
4.2 In the event Taxpayer defaults, the Town may, at its option, exercise the right to demand that the entire unpaid balance, with interest and late charges, be immediately paid in full."
"9. FUTURE ACTIONS
Taxpayer acknowledges and agrees that there are no defenses to the nonpayment of the real property taxes owed nor defenses to enforce the collection of the taxes. In the event the Taxpayer is in default of this Agreement for any reason and the Town elects to enforce the collection of taxes by foreclosure of the lien or liens by any other applicable judicial action, Taxpayer consents to the entry of judgment of foreclosure or other final judgment or order and agrees that no answer shall be filed in opposition to such actions and that the action shall proceed by default. Taxpayer further waives all rights to object to the entry of such order and judgment and agrees to cooperate and execute any and all documents necessary to effectuate this paragraph. (Emphasis Added).
Pursuant to the Town's local Code, § 440-11:
"B. In the event of a default, the Town of Greenburgh shall have the right to accelerate the payments then due and require the entire unpaid balance, with interest and late charges, to be paid in full at once. The Town of Greenburgh shall also have the right to enforce the collection of the unpaid balance pursuant to applicable law [i.e., RPTL Article 11].
"C. Where an eligible owner is in default and the Town of Greenburgh does not require the eligible owner to pay in full the balance of the delinquent taxes or institute foreclosure proceedings, the Town of Greenburgh shall not be deemed to have waived the right to do so."
According to the complaint, "[d]uring the period 1998 through 2002, on at least two occasions, defaults occurred on the payments due pursuant to the tax installment agreement." Further, "[o]n or about July 31, 2002 the Town commenced a tax foreclosure proceeding against numerous property owners, including Route 9A which allegedly owed taxes in the amount of $105,905.75.
The last day to redeem the property was November 7, 2002.
On or about August 8, 2002 the plaintiff retained the defendants attorneys (the Firm) as counsel for the plaintiff in the Tax Foreclosure Action.
It is alleged that from the time the Firm was retained until the November 7, 2002 redemption date, the Firm did not advise the plaintiff that if the taxes were not paid by the redemption date, it would lose all right, title and interest in the Property.
The complaint also alleges as follows: the firm breached its duty of care to the plaintiff by failing to research and correctly interpret provisions of the Real Property Tax Law; by failing to perfect an appeal; and by failing to ensure that plaintiff would be able to recover and develop the Property. Moreover, the plaintiff alleges it "had the financial wherewithal to obtain the necessary monies to satisfy the outstanding taxes." However, in December 2005 a judgment of foreclosure was entered as a result of which the plaintiff lost its right, title and interest in the Property and its right to develop the Property.
To establish a cause of action to recover damages for legal malpractice, a plaintiff must prove "that the defendant-attorney failed to exercise that degree of care, skill and diligence commonly possessed by a member of the legal community," and "that the defendant-attorney's negligence was a proximate cause of damages" ( See De Natale v Santangelo, 65 AD3d 1006).
In order to succeed on a motion for summary judgment, the defendant must establish that the plaintiff is unable to prove at least one of the essential elements of the cause of action sounding in legal malpractice ( see Leone v Silver Silver, LLP , 62 AD3d 962 ; Suydam v O'Neill, 276 AD2d 549; Ostriker v Taylor, Atkins Ostrow, 258 AD2d 572).
In support of the motion for summary judgment the defendants assert that defendants told the plaintiff in no uncertain terms that the property would be lost if the taxes were not paid by November 7, 2002, the redemption date. The defendants also assert that the plaintiff advised the defendants that the plaintiff did not have the resources to pay the taxes due prior to the redemption date. Prior to retaining the defendants, prior to the commencement of the Tax Foreclosure Action, and prior to the fixing of the November 7, 2007 redemption date, plaintiff consented to the entry of a judgment of foreclosure against the property. The 1998 tax installment agreement, the notices of default under that agreement sent in 2000, and the notice that the agreement was canceled due to the plaintiff's defaults support the defendants' position that it was the plaintiff's conduct before the defendant was retained in 2002 that resulted in the loss of the property.
On a motion for summary judgment, the Court's function is to decide whether there is a material factual issue to be tried, and not to resolve said issue ( Sillman v Twentieth Century Fox Films Corp., 3 NY2d 395, 404. A prima facie showing of a right to judgment is required before summary judgment can be granted to a movant ( Alvarez v Prospect Hospital, 66 NY2d 320; Winegrad v New York University Medical Center, 64 NY2d 851; Fox v Wyeth Laboratories, Inc., 129 AD2d 611; Royal v Brooklyn Union Gas Co., 122 AD2d 133). The defendants have made an adequate prima facie show of entitlement to summary judgment.
In opposition to the motion for summary judgment the plaintiff contends that from February 7, 2002, to December 5, 2004, defendants led plaintiff to believe the property would not be lost even if a foreclosure occurred, but rather could be recovered at auction. In support of this assertion, plaintiff refers to the deposition of Bernard Deutsch. However, the one page of the Deutsch transcript, a copy of which is annexed to the Notice of Cross Motion does not support plaintiff attorney's claim. Nor does Exhibit 18 support plaintiff's attorneys' claim that "defendants insisted that plaintiff could buy back the property, pay the taxes, receive the proceeds from the sale over and above the taxes." In further opposition to defendants' motion for summary judgment the plaintiff submitted a 10-page affidavit by David C. Wilkes, a purported expert on real property tax matters. Plaintiff's expert opines that "[i]n my opinion, an ordinary attorney with reasonable skill and ability, after having read the installment agreement, would have advised plaintiff the only manner in which to retain the property was to pay the taxes. Without such payment, the Town was entitled to awny [sic] entry of judgment as of the redemption date of November 7, 2009. However, it is clear from the testimony of defendant Patrick V. Deiorio, he advised the plaintiff that if the taxes were not paid by the redemption date the plaintiff would risk losing the property. Plaintiff has failed to present any documentary evidence to support the conclusory allegations that the plaintiff had sufficient resources to pay the taxes as of the redemption date. Plaintiff does not refute defendants' assertion that as of the redemption date, the plaintiff owed debts in excess of $1.2 million. Nor does plaintiff establish its ability to pay the taxes, its access to funds, its ability to borrow such funds or its desire to borrow said funds.
Although summary judgment is a drastic remedy ( Andre v Pomeroy, 35 NY2d 361), nevertheless a "court must evaluate whether the alleged factual issues presented are genuine or unsubstantiated" ( Assing v United Rubber Supply Co., Inc., 126 AD2d 590; see Rotuba Extruders Ceppos, 46 NY2d 233, 231) and where there is nothing left to be resolved at trial, the case should be summarily decided ( Andre v Pomeroy, supra at 364). Notably, bald conclusory assertions, even if believable, are not enough to defeat a motion for summary judgment ( see Spodek v Park Property Dev. Assocs., 263 AD2d 478)." [A]verments merely stating conclusions, of fact or of law, are insufficient" to "defeat summary judgment'" ( Banco Popular North America v Victory Taxi Management, Inc., 1 NY3d 381, 383, quoting from Mallad Constr. Corp. v County Fed. Sav. Loan Assn., 32 NY2d 285, 290).
The documentary evidence demonstrates that defendants advised the plaintiff to pay the taxes before the redemption date; the plaintiff lacked the resources to pay the taxes before the redemption date; and nothing defendants did or failed to do was a substantial cause of the plaintiff's losing the property in foreclosure.
The plaintiff has failed to demonstrate that but for the negligence of the firm, the plaintiff would have paid its outstanding real estate tax in a timely manner or that it had the financial ability to redeem.
The defendants' motion for summary judgment dismissing the complaint in its entirety is granted. The plaintiff's cross-motion for summary judgment is denied. The plaintiff's complaint is dismissed.