| TMB Communications v Preefer |
| 2009 NY Slip Op 02681 [61 AD3d 450] |
| April 7, 2009 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| TMB Communications et al., Respondents, v John J. Preefer, Appellant. (And a Third-Party Action.) |
—[*1]
McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Brian W. Keatts of counsel),
for respondents.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered October 31, 2008, which denied defendant's motion for summary judgment dismissing the complaint in this legal malpractice action, unanimously affirmed, without costs.
The motion court correctly found the retainer agreement ambiguous (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]) with respect to the scope of defendant's obligations (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]). Plaintiffs' explanation for the late submission of their premerger claim was neither a conclusive bar to their assertion that defendant's advice or failure to respond to their inquiry was the "but for" cause of their loss, since an informal judicial admission may be explained at trial (see Ficus Invs., Inc. v Private Capital Mgt., LLC, 61 AD3d 1, 6 [2009]), nor a basis for judicial estoppel, since their prior position was unsuccessful (see Factory Mut. Ins. Co. v Mutual Mar. Off., Inc., 57 AD3d 304 [2008]; Kalikow 78/79 Co. v State of New York, 174 AD2d 7, 11 [1992], appeal dismissed 79 NY2d 1040 [1992]).
We have considered appellant's remaining contentions and find them unavailing. [*2]
Motion seeking leave to enlarge the record denied.
Concur—Mazzarelli, J.P., Nardelli, Buckley, Acosta and DeGrasse, JJ.