MARTIN SANTULLI, RESPONDENT-APPELLANT, v. ENGLERT, REILLY & MCHUGH, P.C.,
APPELLANT- RESPONDENT.
78 N.Y.2d 700, 586 N.E.2d 1014, 579 N.Y.S.2d 324 (1992).
January 16, 1992
3 No. 241
Decided January 16, 1992
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Scott W. Bush, for Appellant-respondent.
Donna B. Heinrichs, for Respondent-appellant.
ALEXANDER, J.:
In this action for legal malpractice and breach of contract, plaintiff
Martin Santulli and defendant law firm Englert, Reilly & McHugh, P.C.
each appeal, by leave of the Appellate Division, from an order of that
court. The Appellate Division modified Supreme Court's order by
granting defendant's motion for summary judgment and dismissing
plaintiff's breach of contract cause of action as legally insufficient
and affirming that court's denial of defendant's motion, addressed to
plaintiff's malpractice claim, for summary judgment based on Statute
of Limitations grounds. We agree that the malpractice claim is not
barred by the Statute of Limitations, but conclude that the contract
cause of action should not have been dismissed.
I
In October 1980, plaintiff retained defendant law firm to represent
him in the sale of his hardware business. Plaintiff had agreed with
one Daniel White to sell the business for the total sum of $75,000,
$35,000 of which was to be secured by a first mortgage on property
owned by Samuel White, Daniel White's father. These terms and
conditions, among others, were contained in the contract of sale
negotiated by defendant on plaintiff's behalf. According to
plaintiff's allegations, defendant was to prepare a mortgage covering
the entirety of the property owned by Samuel White and have it
recorded. It appears that the mortgage instrument was not executed at
the closing, because the mortgagor was not present. However, shortly
after the closing of the transaction, the mortgage was executed and
defendant had it recorded in the local county clerk's office in
February 1981. During the next couple of months, the only further
SNIPPETS:
The Appellate Division modified Supreme Court's order by granting defendant's motion for
plaintiff retained defendant law firm to represent him in the sale of his hardware business.
Plaintiff had agreed with one Daniel White to sell the business for the total sum of $75,000,
These terms and conditions, among others, were contained in the contract of sale negotiated
Plaintiff retained other counsel and in September 1985 commenced this action against
Supreme Court denied defendant's motion, finding that issues of fact existed requiring a
However, relying on Video Corp. v Flatto Associates (58 NY2d 1026), the court concluded that
Additionally, the court determined that to the extent its prior decisions in Albany Savings
The court's reliance here on its prior decision in Badik is puzzling, especially since Badik,
Defendant argues that a cause of action for breach of contract in the context of an
In any event, Brainard is of doubtful vitality since it relied on the majority opinion at the
Many of these cases in which that language was used were decided in the context of causes of
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