Tai v Broche 2016 NY Slip Op 31586(U) August 18, 2016 Supreme Court, New York County
Docket Number: 652769/2011 Judge: Joan M. Kenney is the story of some high-stakes Manhattan real estate, and the legal malpractice claims that accompany it. The attorneys say that they warned their client not to close, but close it did. Lots of money was lost in the transaction, so…
“These consolidated actions arise out of the purchase of the Premises by Property 215, a company owned by Tai, from the Estate. In a related action, Panasia Estate, Inc. (Panasia) obtained damages from Property 51, to which Property 215 assigned its contract, on a claim of tortious interference with Panasia’s prior contract to purchase the Premises from the Estate, and the contract for the sale of the Premises to Property 51 was held to be void ab initio. See Panasia Estate, Inc. v Broche, 122 AD3d 454 (1st Dept 2014). The Pour defendants represented the Tai plaintiffs in their purchase of the Premises. The Berko defendants were the broker in that transaction, and also in a subsequent unrelated transaction, in which Tai and third-party defendant NTD Building, LLC, as owner, sold a commercial condominium unit in the building located at 156-168 Bleeker Street in Manhattan. ”
“In motion sequence no. 003, the Pour defendants’ motion to dismiss Tai’s legal malpractice and breach of fiduciary duty claims is granted, and Tai’s cross motion for summary judgment is denied. Tai’s claims rest on her allegation that Pour failed timely to advise her of the Panasia action and the filing of the tis pendens. While Tai avers in her affidavit that Pour did not inform her of the action, or the tis pendens, until the day after the closing on the Premises, those statements are belied by Tai’s acknowledgment at her deposition that, as Pour states in his affidavit, he had multiple telephone conversations with Tai on the day of the closing, told her about both the Panasia action and the !is pend ens, and secured her agreement to enter into a joint defense to the Panasia action, with Broche. Moreover, Tai is collaterally estopped from denying that she knew about both the Panasia action and the lis pendens, prior to the closing on the Premises. S_ee Tai v Broche 115 AD3d 577, 579 (1st Dept 2014) (“[Tai’s] awareness of the pendency of [the ‘.anasia] action, the filing of a notice of pendency, and Panasia’s rejec~io~ o~ the Estat~’s atten~pt to term1~~te th~ Panasia contract defeats the justifiable reliance element of [plamt1ffs] fraud claim [aga~nst Broche ~ ). !at does not contest Pour’s avennent that he advised Tai not to proceed with the closing until the Panas ta action was resolved, but that she disregarded that advice, directed him to proceed with the c_losing, ~nd several days prior to the closing, retained litigation counsel to bring ~specific performance a~~ton agamst Broche. Finally, Tai’s allegation that Pour’s post-closmg request for an ad?1t10nal $20,000 payment constituted a “kickback,” or a “shakedown” is rejected, because Pour’s post-closmg request was based upon his additional services, including successfully persuading Broche that the Estate pay the entire mortgage recording tax, in the amount of $115,000, and negotiating, with Tai’s participation by telephone, a “Second Amendment” to the contract between Broche and Tai, that provided, among other terms, the extensive indemnification and hold harmless provision that Tai is now using to support her claims against Broche. Indeed, at the time, Tai agreed that Pour should receive additional compensation, but she persuaded Berko to contribute half of that additional payment, out of his fee, while paying nothing herself. “