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Zautner v Arcodia 2009 NY Slip Op 31362(U) June 24, 2009 Supreme Court, Greene County Docket Number: 06-1336 Judge: Joseph C. Teresi Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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STATE OF NEW YORK SUPREME COURT GLENN ZAUTNER and JANICE ZAUTNER, Plaintiffs, -againstANTHONY ARCODIA, LEWIS SOPRIS and THOMAS SOPRIS a/k/a TOM SOPRIS,

COUNTY OF GREENE

DECISION and ORDER INDEX NO. 06-1336 RJI NO. 19-08-3715

Defendants. Supreme Court Greene County All Purpose Term, June 8, 2009 Assigned to Justice Joseph C. Teresi APPEARANCES: Flaum & Associates, PC Neil Flaum, Esq. Attorneys for Plaintiffs 369 Lexington Avenue, 12th Floor New York, New York 10017 Corrigan, McCoy & Bush, PLLC Scott W. Bush, Esq. Attorneys for Defendant Anthony Arcodia 220 Columbia Turnpike Rensselaer, New York 12144 TERESI, J.: Plaintiffs commenced this action against defendant Anthony Arcodia (hereinafter "Arcodia") claiming Arcodia's legal representation ofthem in a residential real estate transaction was negligent, grossly negligent and constituted a breach of contract. Issue was joined by Arcodia, discovery is complete and a Note of Issue has been filed. Arcodia now moves for summary judgment seeking dismissal of the complaint against him. Plaintiffs oppose the motion. Because Arcodia has not demonstrated his entitlement to judgment as a matter of law dismissing plaintiffs' malpractice claim, that portion of his motion for summary judgment is denied.

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"[S]ummary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue." (tlapierski v. Finn, 229 AD2d 869 [3d Dept. 1996]). On a motion for summary judgment, the movant must establish by admissible proof their right to judgment as a mater of law. (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). A movant fails to meet their burden by "pointing to gaps in ... proof', rather the movant's obligation on the motion is an affirmative one. (Antonucci v. Emeco Industries, Inc., 223 A.D.2d 913, 914 [3d Dept.1996]). If the movant establishes their right to judgment as a matter of law, the burden shifts to the opponent of the motion to establish the existence of a genuine issue of fact. (Zuckerman v. City of New York, 49 NY2d 557 [1980]). In opposing a motion for summary judgment, one must produce "evidentiary proof in admissible form ... mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." (Id. at 562). A legal malpractice action requires plaintiff to demonstrate that "the attorney was negligent in handling the plaintiffs matter, such negligence proximately caused a loss and plaintiff suffered actual and ascertainable damages." (Brodeur v. Hayes, 18 AD3d 979 [3d Dept. 2005] Iv dismissed and denied 5 NY3d 871 [2005]). To establish his entitlement to summary judgment of plaintiffs' legal malpractice claim, Arcodia must demonstrate that plaintiffs "cannot prove at least one of these elements." (Bixby v. Somerville, 62 AD3d 1137,2009 N.Y. Slip Op. 03821,2 [3d Dept. 2009]); Ehlinger v. Ruberti, Girvin & Ferlazzo, P.C., 304 AD2d 925 [3d Dept. 2003]). Here, Arcodia failed to demonstrate that plaintiffs cannot prove one of these elements. In 2005, plaintiffs were offering their home, located in Ravena, New York, for sale by owner. Plaintiffs entered into a contract with Lewis Sopris, dated August 25,2005 (hereinafter

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the "contract"), with Arcodia as their attorney. Paragraph 9 of the contract states: "Deposits: It is further agreed that the SELLER'S attorney [Arcodia] shall hold any and all deposits made by the purchaser in his attorney escrow account until date of closing, date of proper cancellation of this contract, or by written mutual consent of the parties, whichever shall occur first." Under Contract Paragraph 11, the deposit was $75,000.00, with a total purchase price of$225,000.00. It is uncontested that Arcodia did not collect the "deposit" as called for above. Nor, as he alleges, did he attempt to collect the "deposit" for approximately three weeks after the contract's date. He sent no written demand for the deposit until the contract's closing date had arrived, the same day he sent a "time of the essence" letter to Sopris' attorney. Arcodia states "I was not overly concerned that 1was not holding the [deposit]" considering that "[n]ormal practice in Albany, Rensselaer, Schenectady and Saratoga Counties is for the real estate broker to hold the deposit." Arcodia's "normal practice" claim wholly fails to consider the details of this specific transaction. He acknowledged that plaintiffs were selling their home "by owner" without a realtor, and fails to explain how the claimed "normal practice ... for a real estate broker to hold the deposit" would even apply to the plaintiffs' transaction occurring with out a broker. Moreover, his "normal practice" claim is wholly conclusory, unsupported by any evidence of the standard of care in this defined community for real estate sales "by owner". On this record, Arcodia failed to demonstrate that his actions were not negligent as a matter of law. Arcodia also failed to demonstrate, as a matter of law, that his failure to collect the "deposit" in a timely manner is not a proximate cause of plaintiffs' damages. "It has long been the rule in New York that a purchaser who defaults on a real estate contract without lawful excuse cannot recover the down payment." (DiScipio v. Sullivan, 30 AD3d 660, 661 [3d Dept.

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2006] quoting Korabel v. Natoli, 210 AD2d 620 [3d Dept. 1994]; see also Maxton Builders, Inc. v. Lo Galbo, 68 NY2d 373 [1986], Cipriano v Glen Cove Lodge #1458, RP.a.E., 1 NNY3d 53

[2003]). The seller may retain such fund even if the "seller's actual damages [are] less than [the] given down payment." (Id.) On this motion Arcodia did not demonstrate, as a matter oflaw, that Sopris had a "lawful excuse" to cancel the contract, but merely reiterates the excuse given by Sopris at the time he canceled the contract. The causal chain is not broken by such unsubstantiated proof. While the contract's deposit language does not necessarily require forfeiture, Arcodia has not proven, nor even argued, that the contract does not require deposit forfeiture. Moreover, Arcodia failed to set forth any evidence that the plaintiffs are not entitled to the deposit because "the amount fixed is plainly or grossly disproportionate to the probable loss" (JMD Holding Corp. v. Congress Financial Corp., 4 NY3d 373 [2005] quoting Truck Rent a Center, Inc. v. Puritan Farms 2nd, Inc., 41 NY2d 420 [1977]) despite the deposit accounting for 33% ofthe total purchase price (Maxton Builders, Inc., supra [holding that a deposit of 10% or less is forfeited upon a purchaser's breach]). Likewise, Arcodia failed to demonstrate that plaintiffs' damages are not "actual and ascertainable", inasmuch as the $75,000.00 deposit is specifically defined. On this record, Arcodia has neither demonstrated his entitlement to

judgment as a matter oflaw, nor that no issues of material fact exist, relative to plaintiffs' legal malpractice claim. Turning to plaintiffs' gross negligence and breach of contract causes of action, Arcodia has demonstrated his entitlement to judgment dismissing both. "Gross negligence involves a reckless disregard for the rights of others, bordering on intentional wrongdoing." (Haire v.

Bonelli, 57 AD3d 1354 [3d Dept. 2008]). Arcodia has alleged his good faith attempts to

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represent plaintiffs, and this record is devoid of any proof of Arcodia's intentional wrongdoing. There is no issue of fact, and Arcodia is entitled to summary judgment dismissing plaintiffs' gross negligence claim. Similarly, plaintiffs' breach of contract claim is dismissed as it is "identical to [their] malpractice cause of action; no additional promise or duty on the part of [Arcodia] is alleged which would extend beyond the fiduciary duty an attorney owes his or her client. Accordingly, the breach of contract claim is merely a redundant pleading of the malpractice claim and should be dismissed". (Tabner v. Drake, 9 AD3d 606 [3d Dept. 2004]

quoting Miszko v. Leeds & Morelli, 3 AD3d 726 [3d Dept. 2004][internal quotations omitted]). Accordingly, that portion of Arcodia's motion for summary judgment of plaintiffs' legal malpractice claim is denied; and, that portion of his motion seeking summary judgment of plaintiffs' gross negligence and breach of contract causes of action, is granted. All papers, including this Decision and Order, are being returned to the attorneys for defendant Anthony Arcodia. The signing of this Decision and Order shall not constitute entry or filing under CPLR

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