The Bronx plaintiff in this case is appealing an order from the Supreme Court of Westchester County. The order from the court denied the plaintiff’s motion for summary judgment on the issue of liability, dismissed the complaint made against the defendants, and granted portions of the cross motion of the defendants for summary judgment dismissing the complaint as it was alleged that the defendants committed legal malpractice by failing to interpose a claim in an underlying action of rescission based on a mistake.
The plaintiff is a home builder and in 1999 he started negotiations for the purchase of a home that he was building. For the negotiations he retained the defendants to represent him. In January of 2000, the plaintiff was ready to sign a contract of sale as well as a separate basement construction agreement. This contract had been forwarded to the defendant’s offices. The plaintiff executed the basement construction agreement, but then discovered that the buyers had not signed the attached contract of sale. This contract included additional terms that were not previously agreed to in the parties’ negotiations. As a consequence the plaintiff did not sign the contract of sale and told the defendant’s that the deal with the buyers was off and to proceed accordingly.
The defendants received a copy of the contract of sale from the buyers, but at this point the plaintiff was no longer interested in proceeding. In March of 2000, the defendants sent a package of documents that included the signed basement construction agreement and the contract of sale signed by the buyers, but not signed by the plaintiff.
The buyers then started an action against the plaintiff and defendants for performance of the contract of sale. The plaintiff retained a new law firm to represent him in that underlying action. The other law firm successfully moved to dismiss the complaint in the underlying action. However, this motion was reversed on appeal and specific performance was awarded to the buyers.
While the underlying action was still pending the plaintiff started this legal malpractice suit against the defendants. The legal malpractice case was dismissed as premature, but the plaintiff was given leave to start a second action should the buyers be awarded damages in the underlying action. The plaintiff is now seeking to recover damages from the defendants.
The court is granting the application to leave for appeal for the portion of the order that directed the dismissal of the complaint against the defendants. The original order from the Supreme Court of Westchester County is modified by deleting the portion of the order that denied the motion by the plaintiff for summary judgment on the issue of liability against the defendants and substituting a provision that grants that branch of the motion. A bill of costs is awarded to the plaintiff and will be paid by the defendants.