The following papers numbered EF 32-59 read on this motion by the plaintiffs for summary judgment.

Papers Numbered

Notice of Motion - Affidavits - Exhibits. EF 32-51

Affirmation in Opposition - Exhibits EF 53-58

Replying Affirmation EF 59

Upon the foregoing papers it is ordered that this motion by the plaintiffs for summary judgment is decided as follows:

Plaintiffs allegedly lost the sum of $171,559.72 as a result of the negligence and malpractice of their real estate attorney, defendant Albert Talero, Esq. and his law firm, defendant Law Office of Albert Talero, P.C. ("Talero"). Plaintiffs retained defendant Talero to represent them in connection with the purchase of a house located at 93-01 69th Avenue in Forest Hills, New York. On May 3, 2022 at 9:57 AM, plaintiff Robert McCabe received an email from a person claiming to be Drake Allegrini, a paralegal at the law firm of Abrams Garfinkel Margolis Bergson LLP, who represented the mortgage lender for the purchase of the property. The email stated that plaintiffs needed to have "cash to close funds wired to our trust account today to avoid closing delay." The email further stated that "I will send the wire instructions once you have acknowledged the receipt of this email." Shortly thereafter, at 10:34 AM, another email was sent to plaintiff Robert McCabe stating that the closing costs were $222,215.98. Plaintiff thereafter forwarded that email to Talero and sent a separate email to "Drake Allegrini" [*2]questioning the amount of these costs, noting that the final loan documents estimated closing costs to be $171,000. At 2:02 PM on May 3, "Drake Allegrini" responded to plaintiff that his earlier email as to the $222,000 was an error, and the total amount to wire is actually $171,559.72. Plaintiff then emailed Talero telling him that "Drake Allegrini" corrected himself and the closing costs were $171,000. Talero replied "okay. Good. He spoke with me also and he told me he was a mistake. [sic]."

Plaintiff Robert McCabe wired the sum of $67,759.72 from his Wells Fargo account to the account set forth in the email of "Drake Allegrini" on May 6, 2022. On the same day, plaintiff Lauren McCabe wired the sum of $103,800.00 from her TD bank account to the account indicated in the Allegrini email. At 4:24 PM, plaintiff Robert sent an email to Talero stating that he wired the money, "which should settle today."

On the morning of May 11, 2022, the day of the scheduled closing on the property, defendant Albert Talero advised the plaintiffs that his email had been hacked on May 6, 2022, and the money that was wired actually went to an account of an imposter, and the funds to close were never received. Plaintiffs attempted to retrieve their money, contacting the New York City Police Department and the FBI but were unable to do so. Plaintiffs fired Talero and retained new counsel who subsequently completed the purchase of the house.

Plaintiffs commenced the instant action to recover damages for legal malpractice. Plaintiffs allege that if defendant Talero had advised them of the hacking as soon as he learned of it on the evening of May 6, they could have recalled the wired funds on Friday, May 6, Saturday, May 7 or Monday, May 9. Alternatively, plaintiffs state that they could have sought a court order to freeze the account to which the money was wired. According to plaintiffs, by waiting until May 11 to inform them of the hacking of his account, defendant Talero prevented the plaintiffs from taking any steps to recover their funds since the wires had already been delivered to the criminals. Plaintiffs now move for summary judgment.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993].) Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action. (Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. (Peerless Ins. Co. v Allied Bldg. Prods. Corp., 15 AD3d 373, 374 [2d Dept 2005].)

Moreover, the elements required for a legal malpractice action are (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. (Gardner v Sacco & Fillas, LLP, 216 AD3d 1139 [2d Dept 2023]; Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 197 AD3d 544, 545 [2d Dept 2021].)

The court finds that there are triable issues of fact herein that preclude summary judgment. Plaintiffs argue that defendant was negligent by failing to alert them after he learned that a different client had received a suspect email. However, in his affirmation in opposition, [*3]defendant Talero avers that on May 6, he learned that another client received an email allegedly from the defendant instructing him to electronically transfer funds. Defendant states that he then contacted Microsoft, changed his email account address and password and instituted two-factor verification to shore up defenses of the email, following Microsoft's instructions. He then believed the problem was solved.

Further, defendant states that he never received any of the emails from the imposter that were forwarded to him by plaintiff. According to defendant, he did not have any indication that the fraudster had hacked his email account on May 3, 2022. He states that the imposter embedded instructions to deviate any email going in or out of that account that might alert him to the hack. Defendant explains that instead of going into his inbox, the invisible instructions sent emails containing words such as "wire transfer" to directories known as "RSS Feeds", "Archive" or "Deleted Items", where the imposter could obscure or retrieve the messages without arising suspicion. Thus, defendant avers that he never received the email plaintiff sent on May 6 at 4:28 PM stating that he and his wife wired the funds. Therefore, there are issues of fact as to whether defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by an attorney by failing to contact the plaintiffs on May 6.

The court also finds that there are triable issues of fact as to the plaintiffs' negligence. Every email from the real Drake Allegrini contained the following warning:

"IMPORTANT NOTICE: Beware of Cyber Fraud. You should NEVER wire money to any bank account that AGMB provides to you via email without first speaking with our office. Further, DO NOT accept emailed wire instructions from anyone else without voice verification. Even if an email looks like it has come from this office or someone involved in your transaction, CALL US FIRST AT A NUMBER YOU KNOW TO BE CORRECT FOR THIS OFFICE to verify the information before wiring any money. Be particularly wary of any request to change wire instructions you already received."

In view of the information defendant was aware of on May 6, the remedial measures undertaken by the defendant and the warning plaintiffs received regarding the dangers of cyber fraud, there are sharp issues of fact warranting a trial.

Accordingly, this motion by the plaintiffs for summary judgment is denied.