In this action for legal malpractice, plaintiffs Levi Kramer ("Kramer") and E.F.L. Baking Corp. ("EFL") have moved, pursuant to CPLR 3126 and NYCRR § 130-1, for an order striking the defendants' answer and for such relief as the court may deem appropriate, including sanctions upon the defendants. Defendants Wenig Saltiel & Greene, LLP and its general partners Meryl Wenig, Jeffrey L. Saltiel and Ira Greene (the "Wenig Defendants") have cross-moved, pursuant to CPLR 3212, for an order granting the Wenig Defendants summary judgment and dismissing the action. As the plaintiffs acknowledge the claims against defendant Jay Bohensky, their original attorney in the underlying transaction, to be time-barred, Bohensky has been discontinued from this action by a stipulation of discontinuance filed on July 30, 2009.

EFL learned that on July 31, 2003, the landlord had renewed a lease of Jack Jaffa, the lessee of two residential units on the premises, without notifying EFL, thus denying EFL its right of first refusal to lease those units.

On April 20, 2004, Bohensky sent a letter on behalf of EFL, informing the landlord that EFL was exercising its option to purchase the premises for the sum of $500,000 with the landlord to take a 30-year purchase money mortgage, notwithstanding that paragraph 48 of the Lease, which governed the terms of the option to purchase,^[FN2] specified that the landlord would take back a 10-year purchase money mortgage. The landlord's attorney, Jonathan Stein, Esq. of Jonathan A. Stein, P.C., responded, stating that "upon our review of the contract it is our opinion that we are not obligated to sell the property to you at this time" (EFL Baking Corp. v Lowy Family Irrevocable Trust, Sup Ct., Nassau County, October 31, 2006, Austin, J., index No. 10188/05, Exhibit J to Cross Motion).

Thereafter, as Bohenksy was unable to successfully exercise EFL's option to purchase, EFL retained the Wenig Defendants. ^[FN3] On June 18, 2004, the landlord brought a summary holdover proceeding in Kings County Civil Court (index No. 79808/04). The Notice of Termination, from Jonathan Stein on behalf of the landlord, dated June 8, 2004, required that EFL vacate the premises for "failure to pay Tenant's pro rata share of the building, fire and all risk insurance," for failure "to provide the owner and landlord with a duplicate original certificate [of] an insurance policy covering fire and hazard insurance," and for failure to comply with [*3]relevant labor law provisions with respect to EFL's employees. (Exhibit C to the Cross Motion). Upon motion of the Wenig Defendants, the proceeding was dismissed for lack of personal jurisdiction pursuant to an order signed by Judge Loren Baily-Schiffman on September 29, 2004 (Id.). Stein alleges that a new proceeding was commenced shortly after the dismissal, but was voluntarily discontinued in January 2005 (Stein Aff., ¶ 9).^[FN4]

On or about October 27, 2004, the Wenig Defendants commenced suit on behalf of EFL against the landlord in Kings County Supreme Court, (index No. 37910/04), seeking specific performance of EFL's option to purchase and damages resulting from landlord's denial of EFL's right of first refusal with respect to the lease of Jack Jaffa. Once again, the landlord was represented by Stein. On or about June 2005, pursuant to a venue selection clause in the Lease, the case was transferred to Nassau County (Nassau Co., index No. 10188/2005).

During the pendency of the Nassau County action, on July 18, 2005, the landlord again attempted to terminate the Lease through a Notice of Termination, dated July 15, 2005 (the 2005 Notice of Termination).^[FN5] According to Justice Leonard Austin, then of Nassau County Supreme Court, the 2005 Notice of Termination sought to terminate the Lease because, "EFL had failed to pay rent and additional rent as required thereunder, had failed to pay its pro rata share of the insurance on the Premises as required by Paragraph 52 of the Lease, had failed to pay its agreed upon share of the real estate taxes due on the property and had failed to provide the Trust with a certificate of insurance indicating that it had obtained a fire and hazard insurance policy naming the landlord as an additional named insured on the policy" (EFL Baking Corp. v Lowy Family Irrevocable Trust, Sup Ct., Nassau County, December 11, 2007, Austin, J., index No. 10188/05, Exhibit L to the Cross Motion). The 2005 Notice of Termination required that EFL deliver possession of the premises by July 29, 2005 or the landlord would "commence a proceeding in the appropriate court to recover possession of the premises" (Id.). No evidence was provided to this court to suggest that the landlord commenced a summary holdover proceeding based upon the 2005 Notice of Termination. However, Justice Austin notes in his decision of December 11, 2007 that, "EFL did not comply with the July Notice," as it claimed that it was a vendee in possession "no longer subject to the terms of the lease" (Id.).

On January 12, 2006, in connection with the Nassau County action, the parties entered into a stipulation so-ordered by the court, which required, inter alia, "PLAINTIFF [EFL] TO PAY ALL PAST AND CURRENT USE AND OCCUPANCY/RENT WITHIN TEN (10) DAYS OF THE DATE HEREOF, AND THEREAFTER WHEN DUE IN ACCORDANCE WITH THE PROVISIONS OF THE LEASE BETWEEN THE PARTIES" (Exhibit H to the Cross Motion). No reference was made to the 2005 Notice of Termination in the stipulation, nor was there a reservation of rights pursuant to such notice. [*4]

On January 30, 2006, Stein delivered a letter to Ira Greene, one of the Wenig Defendants, acknowledging that partial payment by EFL, consisting of $30,259.64, had been made, but claiming that the payment was late, had been sent to the wrong address, and was insufficient. In the letter, Stein claimed that at least $16,311.36 remained to be paid by EFL to the landlord.

On October 31, 2006, Justice Austin issued a decision dismissing the first cause of action, which sought specific performance of EFL's option to purchase the premises, finding that EFL, through Bohensky, had not properly exercised the option to purchase the premises, in accordance with the requirements of paragraph 48 of the Lease. Justice Austin granted judgment to plaintiff EFL as to the second cause of action, finding the landlord liable for breaching the Lease and denying EFL the right of first refusal to rent additional space. Justice Austin appointed a Special Referee to determine the amount of damages EFL sustained.

On or about July 18, 2007, nearly a year after Justice Austin's initial decision on liability, but before the hearing on damages was held, the landlord moved to amend its answer, introducing evidence that the landlord had attempted to terminate the lease through the 2005 Notice of Termination. The landlord sought to interpose counterclaims seeking a declaratory judgment that it had terminated the Lease and awarding damages incurred due to its loss of possession.

On August 3, 2007, a stipulation was signed by Meryl Wenig, Esq. on behalf of the Wenig Defendants, consenting to the substitution of Garry & Garry, Esq. for the Wenig Defendants as attorney of record for EFL in the Nassau County action. The Wenig defendants state that they had already drafted opposition papers to the landlord's July 18, 2007 motion and forwarded the drafts to William Garry, Esq. in accordance with EFL's direction.

On December 11, 2007, Justice Austin issued a decision permitting the landlord to amend its answer. Because the landlord's motion to amend the answer was served prior to the substitution of counsel, Justice Austin's decision was rendered upon, among other papers, the Affirmation of Ira Greene, Esq. dated August 1, 2007. The decision quoted paragraph 17(1) of the Lease as follows:

"If Tenant [EFL] defaults in fulfilling any of the covenants of this lease, including, without limitations the covenants for the payment of rent and additional rent. . .Upon the Landlord serving a written five (5) day notice specifying the nature of the default, the lease will be terminated and cancelled, without the right or ability to cure, and thereafter this lese [sic] and the term thereunder shall end and expire as though the end of the five day term was the end of the term specified in the lease."

On September 2, 2008, Justice Austin issued an amended decision and order granting the landlord partial summary judgment, determining that the Lease had been properly terminated by the 2005 Notice of Termination and granting the landlord a judgment of possession.^[FN6] Justice Austin found that EFL's only basis for not paying rent stemmed from its claim that, upon exercise of its option to purchase the premises, it was not subject to the terms of the Lease because it had become a vendee-in-possession. Because, in his October 31, 2006 decision, he had found that [*5]EFL improperly exercised its option to purchase, Justice Austin ruled that "EFL's position that it was a vendee-in-possession [was] not viable" (EFL Baking Corp. v Lowy Family Irrevocable Trust, Sup Ct., Nassau County, September 2, 2008, Austin, J., index No. 10188/05, Exhibit M to Cross Motion). Finding that EFL was thus in default, and the landlord was correct in its assertion that the Lease had terminated, Justice Austin awarded the landlord the fair market value for the use and occupancy of the premises during the dates of EFL's holdover, as well as reasonable attorneys' fees, and appointed a Special Referee to determine, inter alia, the fair market value of EFL's use and occupancy of the premises and the landlord's reasonable attorneys' fees.^[FN7]

On February 23, 2009, Kramer and EFL, through their attorney Robert Marcus, Esq., commenced the instant action in Kings County Supreme Court against Jay Bohensky and the Wenig Defendants. The first cause of action, because it relates to damages sought against Bohensky, against whom this action has been discontinued, is dismissed. The second cause of action relates to damages sought against the Wenig Defendants. Plaintiffs claim that the Wenig Defendants were "careless, reckless and negligent in the professional legal services and representation provided by them to the plaintiffs for the matters for which they had been retained, and in failing to adequately and properly represent the plaintiffs in connection with the disputes by and between the plaintiffs and the landlord arising out of the lease" (Complaint ¶ 73).Plaintiffs' complaint is predicated upon their claim that the Wenig Defendants committed malpractice by negligently advising them not to pay rent, which advice plaintiffs followed, to their detriment. Plaintiffs further claim that, due to the Wenig Defendants' alleged malpractice, the plaintiffs have incurred significant damages, including the loss of the value of the Lease.

As a preliminary matter, the "drastic remedy of summary judgment should be granted only if there are no material issues of fact" (Dykeman v Heht, 52 AD3d 767, 769 [2d Dept 2008]; see also Andre v Pomeroy, 35 NY2d 361, 364 [1974]). In order to withstand defendants' motion setting forth a prima facie entitlement to summary judgment, the burden shifts to the plaintiff to raise " a triable question of fact by offering competent evidence which, if credited by the jury, [i]s sufficient to rebut defendant['s] . . . evidence'" (Ramos v Howard Indus., Inc., 10 NY3d 218, 224 [2008], quoting Speller v Sears, Roebuck & Co., 100 NY2d 38, 43 [2003]). "Only the existence of a bona fide issue raised by evidentiary fact rather than one based on conclusory or irrelevant allegations, will be sufficient to defeat a motion for summary judgment where the movant has made out a prima face basis for the granting of the motion" (Archambault v [*6]Martinez, 120 AD2d 632, 633 [2d Dept 1986]). The party opposing summary judgment must present admissible evidence in support of its position as " the submission of a hearsay affirmation by counsel alone does not satisfy this requirement'" (GTF Marketing, Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 [1985] quoting Zuckerman v New York, 49 NY2d 557 [1980]; see also Mittendorf v Brooklyn Union Gas Co., 195 AD2d 449 [2d Dept 1993]). Plaintiff has failed to adduce competent evidence to establish a triable issue of fact requiring the denial of defendants' motion.

To prevail upon a claim of legal malpractice, plaintiffs must prove " both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for' the attorney's negligence'" (Leder v Spiegel, 9 NY3d 836, 837 [2007]quoting AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). An honest error of judgment or the "selection of one among several reasonable courses of action does not constitute malpractice" (Rosner v Paley, 65 NY2d 736, 738 [1985]), nor is the attorney "held to the rule of infallibility" or "liable for an honest mistake of judgment where the proper course is open to reasonable doubt" (Grago v Robertson, 49 AD2d 645, 646 [3d Dept 1975]). Potential liability may arise from "ignorance of the rules of practice, for failure to comply with conditions precedent to suit, for neglect to prosecute or defend an action, or for failure to conduct adequate legal research" (see also Conklin v Owen, 2010 NY Slip Op 3399 at *3 [2d Dept 2010]).

In a legal malpractice action, summary judgment is appropriate when the defendant attorney presents admissible evidence "establishing that the plaintiff is unable to prove at least one essential element [of legal malpractice]" (Lamanna v Pearson & Shapiro, 43 AD3d 1111 [2d Dept 2007] citing Goldberg v Lenihan, 38 AD3d at 598; see also Conklin v Owen, 2010 NY Slip Op 3399).

Defendants contend that the documentary evidence and their own sworn affidavits establish that plaintiffs' allegations do not support a claim of malpractice because they no longer represented plaintiff EFL at the critical time adverse rulings were rendered and, in any event, the allegedly faulty advice, not to pay rent, could not be the "but for" cause of plaintiffs' loss because the loss would have been sustained even if all rent was paid. Defendants further contest plaintiffs' recitation of the facts, arguing that such alleged "facts" are belied by the documentary evidence.

In response, plaintiffs have failed to submit a single affidavit from plaintiff Kramer attesting to the facts alleged, nor have they verified the complaint. The only affirmations presented are those of Stein, who still, according to the plaintiffs, "continues to represent the landlord in proceedings to collect monies due and owing from the plaintiffs" (Stein Aff.), and that of their own counsel, Robert Marcus, who, by his own admission, "did not participate in the transactions and occurrences which form the basis for the complaint" (Marcus Aff.). Obviously, as opposing counsel, Stein has no personal knowledge of any legal advice the Wenig Defendants provided plaintiffs. The sole source for his support of the complaint is a conversation with Meryl Wenig via conference call with Judge Goodheartz. Stein states that, on December 24, 2004, Judge Goodheartz, who presided over one of the summary holdover proceedings,^[FN8] spoke with [*7]Wenig via conference call in Stein's presence. Stein represents that Wenig admitted that she directed Kramer not to pay rent because he had properly exercised the purchase option within the Lease and was a vendee-in-possession (Stein Aff., ¶ 19). In her Reply Affidavit, Wenig does not deny Stein's statement, but claims the conversation was related to settlement discussions and is therefore inadmissible. There is no sworn statement, however, from Kramer, stating that Wenig advised him not to pay rent or that he acted on such advice. Thus, the plaintiffs have failed to provide any competent evidence to support the representations regarding the advice given by the Wenig Defendants, which is privileged and confidential and therefore unavailable to third parties like opposing counsel Stein.

In support of their motion for summary judgment, the Wenig Defendants offer unequivocal evidence that the plaintiffs are unable to prove the necessary elements of legal malpractice. Although the Wenig Defendants deny that they ever advised the plaintiffs to stop paying rent, and in fact, defendant Meryl Wenig represents that rent was paid through their office,^[FN9] they argue that such advice could not be the proximate cause of EFL's eviction because the eviction was based on several defaults in plaintiffs' lease obligations, including, as found by Justice Austin, 1) EFL's failure to pay rent and additional rent 2) EFL's failure to pay its pro rata share of the insurance as required by paragraph 52 of the Lease and 3) EFL's failure to provide the landlord with the necessary insurance certificates. Thus, notwithstanding the nonpayment of rent, EFL's eviction would have been inevitable, given EFL's failure to provide the necessary insurance certificates, which constituted an incurable default, pursuant to paragraph 17(1) of the Lease. Moreover, the failure to secure insurance coverage is incurable as a matter of law. See ARLM, Inc. v Santiago Distrtibutors, Inc., Sup Ct, Kings County, April 26, 2010, Demarest J., index No. 17470/09 ("the lack of insurance coverage is an incurable violation"). See also Kyung Sik Kim v Idylwood, NY, LLC, 66 AD3d 528 [1st Dept 2009]. There is no issue of fact raised with respect to plaintiffs' default in obtaining the required insurance certificates and no suggestion that the Wenig Defendants are responsible for such default. Therefore, sufficient evidence establishes that plaintiffs are unable to prove that "but for" the Wenig Defendants' alleged negligent advice not to pay rent, EFL would have succeeded on the merits of the underlying claim and would not have been evicted.

The Wenig Defendants also can not be held accountable for the legal strategies of successor counsel, William Garry. In cases where "subsequent counsel had a sufficient opportunity to protect the plaintiffs' rights", the plaintiff can not prove that the original counsel was the proximate cause of its damages (Perks v Lauto & Garabedian, 306 AD2d 261 [2d Dept 2003]). In the instant action, no evidence is supplied regarding Garry's representation of EFL. Plaintiffs claim that Garry's substitution was non-consequential because the Wenig Defendants had already advised EFL to cease paying rent, EFL had relied upon their advice and breached paragraph 17(1) of the Lease, and the 2005 Notice of Termination effectively terminated the [*8]Lease. Thus, plaintiffs assert, Garry was unable to affect the outcome of Justice Austin's ultimate decision.

Plaintiffs's arguments are unavailing given the numerous legal strategies Garry could have adopted. Garry represented EFL for approximately a year before Justice Austin's final decision was rendered.^[FN10] No evidence is provided of Garry's opposition to the landlord's attempt to amend the answer and interpose the counterclaim, which ultimately led to EFL's eviction. No explanation is provided as to why Garry did not contest the validity of the 2005 Notice of Termination by highlighting the so-ordered stipulation, in which EFL promised to pay outstanding rent, which was entered on January 12, 2006, months after the 2005 Notice of Termination was served upon EFL, and the landlord's subsequent acceptance of rent. Such stipulation may have supported an argument that the landlord had waived the 2005 Notice of Termination. The record is devoid of evidence of the arguments raised, although counsel on both sides presumably have access to court records. Therefore, plaintiffs are unable to establish that "but for" the Wenig Defendants' alleged improvident advice, EFL would have succeeded on the merits of the underlying claim and would not have been evicted.

Because the Wenig Defendants have presented sufficient evidence to establish that the plaintiff is unable to prove an essential element of a legal malpractice claim, and because plaintiffs have failed to raise a triable question of fact, through competent affidavits, regarding the Wenig Defendants' alleged malpractice or its having caused EFL's eviction, the Wenig Defendants' motion for summary judgment is granted, and the action is dismissed. Plaintiffs' motion for an order, pursuant to CPLR 3126 and NYCRR § 130-1, striking the defendants' answer and for sanctions against the Wenig Defendants, is therefore moot and need not be addressed.

ENTER,

_______________________

Carolyn E. Demarest

J.S.C.