Opinion
Nos. 4600, 4600A.
March 24, 2011.
Judgment, Supreme Court, New York County (Louis B. York, J.), entered February 5, 2010, dismissing the complaint and awarding defendants the amount of $495.00 for costs and disbursements, and bringing up for review an order, same court and Justice, entered January 27, 2010, which, insofar as appealed from, granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the judgment vacated. Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Roger J. Bernstein, New York, for appellants.
Altschul Altschul, New York (Barbara Friedman of counsel), for respondents.
Before: Mazzarelli, J.P., Saxe, Friedman, Acosta, Freedman, JJ.
Plaintiffs commenced this action against defendants for professional malpractice in connection with defendants' representation of plaintiffs in a lawsuit for unpaid rent that resulted in a judgment against plaintiffs in the amount of $129,911.32. The court granted defendants summary judgment dismissing the malpractice claims on the ground that the unpaid rent judgment was satisfied by a voluntary and gratuitous third-party payment, which meant that plaintiffs suffered no loss due to the alleged malpractice. Although the judgment was satisfied without plaintiffs making any direct out-of-pocket expenditures from their personal accounts, the payment satisfying the judgment was not made by a separate and disinterested third-party, but by companies that plaintiffs own and control, and based on loans that plaintiffs are co-obliged to pay back. The satisfaction of the judgment in this manner did not warrant a finding that plaintiffs suffered no loss as a result of defendants' alleged mal-practice so as to justify the dismissal of the complaint.