On September 14, 2023, Justice Schecter of the New York County Commercial Division issued a decision in Marconi v. Gates Capital Corp., 2023 NY Slip Op. 33197(U), dismissing a legal malpractice claim on summary judgment for lack of facts showing that the defendants’ alleged malpractice damaged the plaintiff, explaining:
The alleged malpractice of defendants Epstein, Becker & Green, P.C. (EBG) and Alan Kleiman was not the proximate cause of plaintiffs injury. Plaintiff claims they had an obligation to discuss the requirements of the N-PCL in connection with the January 28, 2015 vote, despite the agreement to sell the property not having been executed until January 30, 2015. However, Kleiman’s failure to advise plaintiff about the supposed requisite voting requirement and need to seek approval from the Attorney General did not harm plaintiff or plausibly affect the board’s vote. Regardless, on April 2, 2015, plaintiffs board unanimously ratified the January 2015 vote, the decision to proceed with the purchase agreement and Gates’ fee. There is no question of fact about the validity of the April 2015 vote. Thus, plaintiff was not harmed by any malpractice that could have affected the January 2015 vote, nor is there any basis for plaintiff to complain that it was harmed by anything that occurred prior to the April 2015 vote.
Furthermore, the lack of written memorialization of Rocco Sebastiani’s $5 million donation was not the cause of plaintiff’s default or any of its damages since, among other things, plaintiff materially changed the character of the project by pivoting to trying to sell condominiums. Sebastiani never denied (and indeed there is no question of fact) that he made the donation or that such a pledge is enforceable. Rather, he objected to the materially changed plans, as he took issue with a different type of project being pursued instead of what the parties had agreed upon. Thus, even if the donation had been memorialized in writing (and irrespective of the form contract used) there would still have been a legitimate dispute about his obligations by virtue of plaintiffs change of plans. And in light of that change there is no way to know whether Sebastiani’s contribution would have been provided. Consequently, the question of whether EBG’s failure to document his contribution in writing harmed plaintiff is impermissibly speculative.
The same is true of all of plaintiffs other pleaded theories of malpractice.
(Internal citations omitted).