The defendants move for an order pursuant to CPLR §3212 granting the defendants summary judgment and dismissing plaintiff's complaint in its entirety. The defendants submit a Memorandum of Law in Support of defendants' Motion for Summary Judgment. The plaintiff cross-moves for an order pursuant to CPLR §3212 granting summary judgment in favor of plaintiff and against the defendant, and setting the matter down for an assessment of damages. The defendants submit opposition to the cross-motion. The defendants submit a Memorandum of Law in support of the defendants' opposition to the plaintiff's cross-motion. The plaintiff submits a reply affirmation.

The defendants, Richard D. Longworth and Richard D. Longworth, P.C., (collectively referred to as the "defendant"), were orally retained by Lucio and Gilda Porello, co-administrators of the Estate of Angelina Porello, in 1995. The defendant was hired to handle the sale of real property owned by the estate, as well as matters relating to the sale. The estate property consisted of three non-contiguous lots located at 43 Perry Avenue, Bayville, New York. The estate owned four certain tax lots described as A, B, C, and D. The estate owned lots "A", "B" and "D". A certain tax lot described as "C" was owned by Mary Porello, a sister of Lucio and Gilda Porello. Mary Porello lived in, and occupied, a small house on Lot "A" pursuant to an oral agreement. In 1995, Lucio Porello was interested in "swapping" the lot owned by Mary Porello, Lot "C", for the lot Mary was living on, Lot "A", which was owned by the estate, and then selling the property, as contiguous property. [*2]

Thereafter, several possible sub-division scenarios arose. Proposed sub-divisions of the existing property provided reconfiguration whereby access to the property was through Perry Avenue or Creek Ridge Road. The defendant then embarked upon the process of procuring potential purchasers. Thereafter, an offer for the property was made by John Vitteritis, President of Tides Construction, for the purchase price of $575,000.00, contingent upon subdivision approval. Eventually, the Village Board agreed to the reconfiguration, but imposed a 3% recreational fee. The defendant, with the approval of then Administrator, Lucio Porello, commenced an Article 78 proceeding to overturn the Village's determination in imposing a 3% recreational fee. The Article 78 proceeding was successful, and the Village's determination in imposing a 3% recreational fee was overturned.

The defendant provides that Joe Reilly, Chairman of the Village Planning Board, was also interested in purchasing the property, and that Mr. Reilly indicated to the defendant that he would step down from his planning board position to avoid any conflict of interest. By way of letter dated September 14, 1999, then Administrator, Lucio Porello wrote to Mary Porello, stating, inter alia, that "The Village of Bayville, especially Mr. Joe Reilly, is holding up the necessary paperwork which will enable us to file to have the deeds transferred. We may even have to go back to court to get this matter taken care of . . . ."

A contract was drafted by the defendant for the sale of the Porello Estate. The contract was executed by Lucio Porello on behalf of the Estate, and the Vitteritis', as purchasers, with a purchase price of $650,000.00. The contract provided, inter alia, that the sale was conditioned upon the approval of The Planning Board of Bayville, and acknowledges that the Seller, (the estate), and "Mary Porello have executed deeds to each other to effectuate the land swap referred to in the subject Planning Board decision." The contract contemplated access to the property through the extension of Creek Ridge Road.

Apparently, the plaintiff herein, the subsequent Administrator of the Estate, Sebastian J. Porello, renegotiated the contract price to $662,500.00, and the method of access to the estate property. In July of 2001, Mary Porello entered into a settlement agreement with the Vitteritis as purchasers, whereby Mary agreed to "swap" her parcel for a portion of the Perry Avenue parcel owned by the Estate. A new contract was entered into between Sebastian Porello as Administrator for the Estate, and the Viterittis, with a contract price of $662,500.00. Despite having entered into a stipulation to "swap" her property, Mary Porello refused to do so. Mary Porello was eventually directed to comply with the terms of the stipulation, by way of order of the Honorable John B. Riordan, of the Surrogate's Court, County of Nassau. On or about October of 2002, the closing took place with a purchase price of $662,500.00.

Thereafter, plaintiff initiated this action for legal malpractice and breach of contract.

The defendant argues that the plaintiff herein, Sebastian Porello, Administrator of the Estate [*3]of Angelina Porello, lacks standing to bring an action based on negligent misrepresentation. At the time of the alleged negligent misrepresentation, the Administrator of the Estate was Lucio Porello, and not, plaintiff Sebastian Porello. Therefore, the plaintiff lacks privity with the defendant. This Court agrees. Absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties, not in privity, for harm caused by professional negligence. (Prudential Ins. Co. v. Dewey, 80 NY2d 377, Rovello v. Klein, 304 AD2d 638, and Deeb v. Johnson, 170 AD2d 865). As Lucio was the administrator of the estate at the time of the alleged misrepresentations, and not the plaintiff, Sebastian Porello, the plaintiff has no standing to bring a claim of legal malpractice or negligent misrepresentation.

Assuming, arguendo, that plaintiff has standing to bring the action of legal malpractice, the plaintiff's papers are insufficient to overcome the defendant's submission that the plaintiff cannot make out a prima facie of attorney malpractice.

An action for legal malpractice requires proof of three essential elements: (1) the negligence of the attorney, i.e., that the attorney failed to exercise that degree of care, still and diligence commonly possessed by a member of the legal profession; (2) that the negligence was a proximate cause of the loss sustained; and (3) actual damages. (Prudential Ins. Co. v. Dewey, 170 AD2d 108, and Gray v. Wallman & Kramer, 184 AD2d 409. For a defendant in a legal malpractice action to succeed on a motion for summary judgment, evidence must be presented in admissible form establishing that the plaintiff is unable to prove at least one of the essential elements of a malpractice action listed above. (Ippolito v. McCormack, Damiani, Lowe & Mellon, 265 AD2d 303).

To establish the elements of proximate cause and actual damages in a malpractice case, plaintiff must show that he or she would have a favorable outcome but for the attorney's negligence. (Carmel v. Lunney, 70 NY2d 169, Zasso v. Maher, 226 AD2d 366, Hill v. Fisher & Fisher, 203 AD2d 328). An attorney does not, except by express agreement, guarantee results. (Weinberg v. Needleman, 226 AD2d 3).

Here, the defendant has submitted the affidavit of Lucio Porello, who avers that the defendant has provided competent and conscientious legal representation over the course of years. By way of letter, Lucio Porello states that Mr. Reilly, Chairman of the Village Planning Board, was holding up the necessary paperwork to enable the deed transfer. Additionally, the defendant has submitted testimony on behalf of plaintiff, Sebastian Porello, whereby Sebastian Porello testified at his deposition that Mr. Reilly, the Chairman of the Village Planning Board "created the problem" in that a vote by the Board would have passed, "if it weren't for Reilly and another gentlemen who were interested in buying the property. But because they couldn't buy it, it was sour grapes so-to-speak." The defendant also submitted proof demonstrating that Mary Porello was a signified factor that contributed to the delay in closing as she refused to comply with a stipulation that she executed, whereby she agreed to "swap" property. A court-order was eventually obtained directing her to comply. [*4]

The defendant has demonstrated that the above actions by third parties, Mr. Reilly and Ms. Porello, and not the defendant's actions, contributed to the delay in closing.

Here the plaintiff has not demonstrated, or presented any admissible proof, to support its claim, that "but for" the defendant's actions, the eventual result, the sale of the property, would have occurred sooner. Rather, the plaintiff has not disputed that the actions by third parties, Joseph Reilly

and Mary Porello, interfered with the closing and delayed the closing. In any event, plaintiff has not demonstrated that but for the defendants' actions, the estate property would have closed sooner.

Additionally, the defendant has presented the testimony of Sebastian Porello to demonstrate the plaintiff's claim for damages is speculative. Sebastian Porello testified that in monetary terms, the estate was damaged by the defendant's negligent representation in that the estate had a "loss [in] the use of money" and that he could have "bought REITS, real estate investments," and that one could stand to get 7-9 percent from investing in REITS. Sebastian Porello calculated 9% of $650,000.00, approximately $65,000.00, multiplied by four years, as a loss to the estate.

Mere speculation about a loss resulting from an attorney's alleged omission is insufficient to sustain a prima facie case of legal malpractice. (Giambrone v. Bank of New York, 253 AD2d 786). Damages must be "actual and ascertainable" resulting from the proximate cause of the attorney's negligence. (Trimboli v. Kinkel, 226 NY 147; Zarin v. Reid & Priest, 184 AD2d 385). As plaintiff cannot prove how a subsequent sale could have been consummated sooner, plaintiff's claim for lost interest is too speculative. (Ecker v. Zwalk & Bernstein, P.C., 240 AD2d 360; Lloyd v. Town of Wheatfield, 67 NY2d 809). Plaintiff claims that the defendant gave "[b]ad advise, bad contract, and more bad advise." An error of judgment does not rise to the level of malpractice. (Rosner v. Paley, 65 NY2d 736). The selection of one among several reasonable courses of action does not constitute malpractice. (Id; Lewis v. Desmond, 187 AD2d 797).

The plaintiff's breach of contract action is merely duplicative of the malpractice action, and as such, must be dismissed. (Marcus Borg Rosenberg & Diamond v. Gilbert, Seagall & Young, LLP, 248 AD2d 279).

The plaintiff's claim for the recovery of legal fees of $5,000.00 paid to the defendant is denied as the plaintiff has not demonstrated proof of the defendant's negligence.

In light of the foregoing, the defendant's motion for summary judgment is granted, and the [*5]plaintiff's complaint is dismissed. The plaintiff's cross-motion for summary judgment is denied.

ENTER:

________________________________

J.S.C.

Dated: December 16, 2004