Salyamov v. Lyhovsky

2017 NY Slip Op 929, 147 A.D.3d 450, 46 N.Y.S.3d 586

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2017
• Docket: 3009 152452/15
• Status: Published

Opinion

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered July 25, 2016, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiff asserts a legal malpractice claim based on defendant’s alleged failure to confirm that a sublessor of premises in which plaintiff wished to operate a business had the owner’s consent to assign the sublease at issue. However, there was no assignment of the sublease; the subtenant was a corporation whose stock plaintiff purchased in the transaction at issue. Further, it is undisputed that the master lease allowed the sublessor to sublet the premises without the owner’s consent.

Plaintiff’s additional theory of liability, that defendant failed to ascertain the status of the master lease, was improperly raised for the first time in opposition to defendant’s motion for summary judgment (see Atkins v Beth Abraham Health Servs., 133 AD3d 491 [1st Dept 2015]).

Concur — Tom, J.P., Renwick, Saxe, Feinman and Gesmer, JJ.