This is a legal malpractice action arising out of a real estate purchase. Viktoriya Bakcheva retained the Law Offices of Stein & Associates to represent her in the purchase of a condominium unit. She alleged that the lawyers did not properly investigate the transaction because the Unit at issue had a second floor above the first floor. The problem – the second floor was not as described in the condominium documents or the certificate of occupancy. (It would appear that a prior owner of the unit had added an additional floor to the unit without obtaining a permit or the permission of the condominium association. As one might imagine, the lawyers’ motion for summary judgment was denied. They appealed and did no better in the Appellate Division.
We agree with the Supreme Court that the defendants were not entitled to summary judgment dismissing the legal malpractice cause of action. Although the defendants established their prima facie entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact in opposition. Specifically, the plaintiff submitted evidence that she had informed the defendants, prior to the closing, that the main portion of the apartment was on the seventh floor of the building and that the apartment included a second level. According to the plaintiff, the defendants committed malpractice because they failed to recognize the illegality of the second level, since neither the certificate of occupancy nor the approved condominium offering plan authorized the existence of an eighth floor to the condominium (see id.).