Legal malpractice is fascinating, in part, because of the wide range of underlying disputes in which it pops up. Take for example the Manhattan apartment purchaser. She wants city views. She buys into an new development, and does so will prior to completion of the building. What exactly are city views? In this case her windows faced north and there were many buildings directly north of her. There may have been 50 or more blocks of buildings north of her. The most important were the next three buildings directly north of her. Two were “low rise.” Since change is constant in Manhattan real estate, she was worried that they might build up and completely block her view. In the end it was a 12 story building three blocks north that was at issue.
Her apartment was on the 12th floor. Would a 12 story building three blocks north ruin the view? Widlitz v Douglas Elliman, LLC 2019 NY Slip Op 31737(U) June 21, 2019
Supreme Court, New York County Docket Number: 154689/2016 Judge: Arlene P. Bluth tells us that while this attorney gets out of the case, others might be liable in similar situations.
“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any
damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Corker & Sauer, 8 NY3d 438,
442, 835 NYS2d 534  [internal quotations and citations omitted]).
Plaintiff alleges that Lee committed malpractice by failing to inform her about the apartment’s views and because of Lee’s alleged failure to advise her about any rights to rescind the purchase agreement. However, the deposition testimony and email exchanges between plaintiff and Lee indicate that plaintiff only asked Lee about any potential air rights that the neighboring buildings had and did not ask about the current status of the view of the apartment she was planning to purchase. Plaintiff states: “So I was concerned that the buildings next to the street, there are like two buildings further north on that street, they were low rise, but I was concerned that potentially one of those could be knocked down and something could be built. That is what I asked him [Lee] to investigate” (NYSCEF Doc. No. 164 at pgs. 87-88). Plaintiff only asked Lee about potential rights that these buildings had with respect to building more stories in the future. This is not the equivalent of asking Lee to investigate whether it was true that her apartment would have city
Plaintiff’s testimony does not indicate that she ever asked Lee to ascertain what her apartment views would look like, nor does it indicate that Lee made any misrepresentations which caused plaintiff damages. ”
“This testimony indicates that plaintiff was concerned about possible changes to nearby buildings and wanted to determine whether either of the two low-rise buildings directly to her north (373 and· 375 Broadway) could be built up in the future (what “could change my view”). It does not indicate that plaintiff was concerned about the view her apartment would have upon completion. She never claims to have asked her lawyer to double-check Elliman’ s representations. That makes sense: she claims she believed Elliman and the drone’s picture and asked her lawyer to investigate air rights of her neighbors between her building and 3 77 Broadway. She believed she had a view-she wanted her lawyer to make sure that view would stay. ”
“Plaintiffs next basis for legal malpractice is that Lee failed to timely inform her of her alleged right to rescind her purchase agreement on May 15, 2015. In an email sent to Lee, plaintiff expressed concern that the construction was taking too long and asked if she could get out of her contract to purchase the apartment. In response Lee told plaintiff that since her arrangement with Hashem was an assignment, they would have to talk to Hashem directly. But plaintiff does not show that she ever followed up to request that Lee communcate with Hashem to try to cancel the arrangement. Therefore, this cannot serve as a basis for legal malpractice. “