THE SCOPE OF REPRESENTATION AND LEGAL MALPRACTICE

Ressler v. FARRELL FRITZ, PC, 2022 NY Slip Op 31706 - NY Co. Supreme Court 2022:

"...Legal malpractice concerns whether an attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). A cause of action for legal malpractice requires the plaintiff to plead and prove the attorney's negligence, that the attorney's negligence was the proximate cause of plaintiff's damages, and actual damages (Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 59 [1st Dept 2007]). To establish proximate cause, the "plaintiff must demonstrate that `but for' the attorney's negligence, plaintiff would either have prevailed in the matter at issue, or would not have sustained any `ascertainable damages' (Leder v Spiegel, 31 AD3d 266, 268 [1st Dept 2006], affd 9 NY3d 836 [2007], cent denied sub nom. Spiegel v Rowland, 522 US 1257 [2008] [citations omitted]).

It is well settled that "[a]n attorney may not be held liable for failing to act outside the scope of the retainer" (Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC, 157 AD3d 479, 482 [1st Dept 2018], citing Ambase Corp. v Davis Polk & Wardell, 8 NY3d 428 [2007]). Here, plaintiffs have not dispelled all questions of material fact as to whether they had engaged defendants to monitor DART for changes to the four tidal wetlands permits issued to Village People and to commence Article 78 proceedings challenging potential modifications to those permits. In defining the scope of defendants' representation, the Engagement Letter states that "[Farrell Fritz] will represent you in connection with the commencement of an action against Village People LLC, and its principal, John Zaccaro, Jr. asserting possible adverse possession and other claims relating to real property located at Pennant Walk" (NYSCEF Doc No. 39 at 1). The letter further states that defendants shall provide legal services "in connection with potential litigation involving title to real property located in Saltaire" (id.). While the phrase "and other claims" is ambiguous, the Engagement Letter does not mention the DEC, the permits issued to Village People or the commencement of any proceeding to challenge future modifications or amendments to those permits. Further, the DEC issued the permits to Village People in 2017, and the time within which to challenge that determination expired long before plaintiffs executed the Engagement Letter. Plaintiffs have not shown whether the Engagement Letter was ever modified to expand the scope of defendants' obligations to include continually monitoring the four permits issued to Village People and authorizing defendants to commence legal proceedings if DEC were to modify those permits. Given plaintiffs' failure to meet their prima facie burden, the branch of the motion seeking partial summary judgment on the issue of defendants' negligence is denied without regard to the sufficiency of defendants' opposition."