Appeals from amended judgments of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered January 18, 2005. The amended judgments, after a nonjury trial, awarded plaintiff the principal sum of $5,000 as against

defendant Connexion I Real Estate Services, Inc., and the principal sum of $5,000 as against [*2]defendant William Anderson, Esq., respectively.

On the court's own motion, the appeals are consolidated for purposes of disposition.

Amended judgments reversed without costs, and complaint, insofar as asserted against defendants Connexion I Real Estate Services, Inc. and William Anderson, Esq., dismissed.

On or about August 14, 2003, plaintiff entered into a written contract to purchase a condominium unit from defendant Judith Muscio. On November 4, 2003, plaintiff failed to attend the closing for his purchase of the condominium unit, allegedly because of an issue involving the availability and cost of parking. Thereafter, he commenced the instant action, seeking to recover damages allegedly arising from the transaction, including, inter alia, the loss of his $10,000 down payment. The action was brought against various parties involved in the real estate transaction: Connexion I Real Estate Services, Inc. (Connexion), the real estate broker; Del-Kap Management (Del-Kap), the managing agent for the condominium development; Ragano & Ragano, Esqs. (Ragano), the seller's attorneys; William Anderson, Esq. (Anderson), plaintiff's former attorney; Arlene Pacchiano (Pacchiano), the individual broker for the sale; and Judith Muscio (Muscio), the seller of the condominium unit. During the course of the nonjury trial, plaintiff settled with defendant Del-Kap, and the Civil Court dismissed the complaint as against defendant Muscio. In its decision after trial, the court dismissed the complaint as against defendants Pacchiano and Ragano. The court found defendant Connexion liable for fraud and deceit, directing that judgment be entered in favor of plaintiff as against it in the principal sum of $5,000, and found defendant Anderson liable for legal malpractice, directing that judgment be entered in favor of plaintiff as against him in the principal sum of $5,000. Defendants Connexion and Anderson respectively appeal from the separate amended judgments entered against them.

In order to make out a claim for fraud as against defendant Connexion, plaintiff was required to prove that Connexion made a "misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the
misrepresentation or material omission, and injury" (Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]). Justifiable reliance will not be found if the facts alleged to have been misrepresented were not matters peculiarly within the plaintiff's knowledge and if the plaintiff had the means to discover the truth by the exercise of his ordinary intelligence (see Joseph v NRT Inc., 43 AD3d 312 [2007]). In this case, notwithstanding the fact that the initial advertisement for the condominium unit stated that parking was included, plaintiff himself admitted that before entering into the contract he spoke to a representative of defendant Del-Kap, as well as to defendant Anderson and defendant Pacchiano, regarding the availability of parking. Defendant Pacchiano testified that she spoke to plaintiff several times regarding same. He knew that there was a monthly fee for parking and that a spot would become available to him after the closing. Thus, the facts surrounding the cost and availability of parking were not matters peculiarly within the knowledge of the real estate broker. Having ascertained the true facts prior to entering into the contract, plaintiff cannot be said to have justifiably relied upon the alleged misrepresentation regarding parking in the advertisement. Accordingly, contrary to the finding of the Civil Court, defendant Connexion was not liable for fraud, and the complaint, insofar as asserted against it, should have been dismissed. [*3]

The Civil Court further found that defendant Anderson was liable for legal malpractice in that he failed to apprise plaintiff of the rules and regulations of the condominium and of their significance; failed to have plaintiff read the by-laws and rules and regulations of the condominium prior to signing the contract; failed to explain the contract of sale and plaintiff's obligations with respect thereto; and failed to address the issue of parking.

In order to recover damages for legal malpractice, plaintiff was required to establish the attorney's negligence, i.e., that defendant Anderson failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; that defendant Anderson's conduct proximately caused plaintiff to sustain a loss; and that plaintiff sustained actual and ascertainable damages as a result of defendant Anderson's negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; see also Barnett v Schwartz, 47 AD3d 197 [2007]). Unless the ordinary experience of the finder of fact provides a sufficient basis for judging the adequacy of the professional service, or the attorney's conduct falls below any standard of due care, expert testimony is generally necessary to establish that the attorney breached a standard of professional care and skill (see Zasso v Maher, 226 AD2d 366 [1996]; Greene v Payne, Wood & Littlejohn, 197 AD2d 664 [1993]).

In the instant case, plaintiff sought to establish that defendant Anderson generally failed to apprise him of the rules and regulations of the condominium and of the various rights and obligations of the parties pursuant to the contract of sale, which alleged failures caused defendant Anderson's representation to fall below the standard of care required of a legal professional. However, the credible evidence at trial indicates that defendant Anderson did go over the terms of the contract of sale with plaintiff and generally explained to him his obligations as a purchaser. To the extent plaintiff sought to demonstrate that defendant Anderson failed to apprise him of certain specific matters beyond those of which the record shows he was apprised, plaintiff failed to offer any expert testimony to establish that such alleged failures caused defendant Anderson's representation to fall below the standard of care required of a legal professional. Thus, plaintiff did not establish defendant Anderson's liability for legal malpractice, and the complaint, insofar as asserted against defendant Anderson,
should have been dismissed.

Accordingly, the amended judgments against defendants Connexion I Real Estate Services, Inc. and William Anderson, Esq., are reversed, and plaintiff's complaint, insofar as asserted against said defendants is dismissed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: January 26, 2009