Opinion
09-27-2016
Aristalia BENITEZ, Plaintiff, v. UNITED HOMES OF NEW YORK, LLC, et al., Defendants. U.S. Bank, National Association, Third–Party Plaintiff–Respondent, v. ANM Funding, LLC, et al., Third–Party Defendants, Lowenthal & Kofman, et al., Third–Party Defendants–Appellants.
Furman Kornfeld & Brennan LLP, New York (A. Michael Furman and Brandon H. Weinstein of counsel), for appellants. Moran • Karamouzis LLP, Rockville Centre (Siobhan E. Moran and Andrew P. Karamouzis of counsel), for respondent.
Furman Kornfeld & Brennan LLP, New York (A. Michael Furman and Brandon H. Weinstein of counsel), for appellants.
Moran • Karamouzis LLP, Rockville Centre (Siobhan E. Moran and Andrew P. Karamouzis of counsel), for respondent.
ANDRIAS, J.P., RICHTER, GISCHE, KAHN, JJ.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about April 17, 2015, which, to the extent appealed from as limited by the briefs, granted defendant/third-party plaintiff U.S. Bank, National Association's (the bank) motion for partial summary judgment on the issue of liability on its legal malpractice claim against third-party defendants Lowenthal & Kofman and Jerald Weinberger (together the law firm), and denied the law firm's motion for summary judgment dismissing that claim, unanimously affirmed, without costs.
The bank made a prima facie showing that the law firm departed from the standard of care in connection with the closing of a residential real estate mortgage loan to plaintiff by, among other things, failing to advise that the subject property lacked a certificate of occupancy, failing to advise of the risk of funding the loan under these circumstances, and failing to confirm that plaintiff contributed 3% of her own funds toward closing, a condition of the loan (see generally AmBase Corp. v. Davis, Polk & Wardwell, 8 N.Y.3d 428, 434, 834 N.Y.S.2d 705, 866 N.E.2d 1033 [2007] ). The motion court properly considered the affidavit of the bank's legal expert concerning the duty of care an attorney owes to a mortgage-lender client (see Suppiah v. Kalish, 76 A.D.3d 829, 832, 907 N.Y.S.2d 199 [1st Dept.2010], appeal withdrawn 16 N.Y.3d 796, 919 N.Y.S.2d 512, 944 N.E.2d 1152 [2011] ; Merlin Biomed Asset Mgt., LLC v. Wolf Block Schorr & Solis–Cohen LLP, 23 A.D.3d 243, 803 N.Y.S.2d 552 [1st Dept.2005] ). The bank's closer, who was responsible for ensuring that the closing documents were in order, clearly had “knowledge of the facts” and therefore was qualified to submit an affidavit in support of the bank's summary judgment motion (CPLR 3212[b] ). The closer's lack of knowledge concerning the underwriting process is irrelevant to the legal malpractice claim.
In opposition, the law firm, which did not rebut the expert's opinion with an expert opinion of its own, failed to raise a triable issue of fact (see Cosmetics Plus Group, Ltd. v. Traub, 105 A.D.3d 134, 141, 960 N.Y.S.2d 388 [1st Dept.2013], lv. denied 22 N.Y.3d 855, 2013 WL 6009614 [2013] ).
We have considered the law firm's remaining arguments and find them unavailing.