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Vincent J. Gallo, Esq., "A checklist as to what an attorney should NOT DO in the course of properly representing a Purchaser."

posted Apr 13, 2015, 4:45 AM by Pete Weinman   [ updated Apr 13, 2015, 4:46 AM ]

It’s not a problem………..until it’s a problem.

Blanco v. Polanco, 2014 NY Slip Op 02735 (April 23, 2014) The Plaintiffs purchased a two-

family home from the Defendant, Your First Home, LLC. They did so without first conducting 

an inspection of the premises. At the closing, the Seller agreed to make certain repairs set forth 

on a punch list within 10 business days following closing. Shortly after the closing, the 

Purchasers took occupancy of the premises.

The Seller never completed the punch list. Furthermore, after the Purchasers moved into the 

premises, they discovered mold in various areas and found that water accumulated in the 

basement whenever it rained. Additionally, when the Purchasers tried to rent the second floor 

apartment of the house, they were informed that they could not do so because the house did not 

have a Certificate of Occupancy (hereinafter CO), and that there were numerous "outstanding 

requirements" that needed to be satisfied before one could be obtained.

The Purchasers commenced an action against, among others, the Seller and their attorney who 

represented them in the transaction, alleging that the Defendants in the action colluded to defraud 

them in connection with the purchase of the premises by, inter alia, dissuading them from 

obtaining an inspection (as did the Seller), representing that any repairs and construction required 

on the premises would be performed and paid for by the Seller before or immediately after the 

closing, misrepresenting the condition of the premises, and misrepresenting that the apartment on 

the second floor could be rented immediately upon closing and that the premises had a CO. The 

Purchasers sought to recover damages from their attorney for legal malpractice, fraud, breach of 

fiduciary duty, negligence, unjust enrichment, and conspiracy to commit fraud.

The Purchasers submitted evidence that their attorney had his non-attorney assistant pose as him 

and counsel them throughout the transaction. They also supplied proof that their attorney 

hastened them to sign the Contract of Sale without reading it and failed to advise them that by 

signing the Contract, they were agreeing to purchase the premises "as is" and waiving their 

opportunity to conduct an inspection. They also presented proof that their attorney reassured 

them that the Seller would make needed repairs and advised them that they should trust the 

Seller's opinion that a professional inspection was not necessary. They also presented proof that 

their attorney failed to ask the Seller to fulfill its obligation under the Contract of Sale to provide 

a CO or "a letter from the Building Department . . . to the effect that no CO is required."

Furthermore, the Purchasers submitted a report from the New York City Department of 

Buildings indicating that subsequent alterations may have been made to the premises, triggering 

the need for a CO and that various "outstanding requirements" needed to be satisfied before a CO 

could be obtained.

Compounding the above, the Purchasers submitted evidence showing that their attorney had a 

relationship with the Seller, pursuant to which he received more than 100 referrals from the 

Seller, and when they were in the Seller's office, they were introduced to the non-attorney 

impostor posing as their attorney who told them that he was the attorney. The Court held that 

when viewed as a whole, it may be inferred from this evidence that the attorney and the Seller 

may have colluded to defraud the Purchasers in connection with their purchase of the premises. 

Accordingly, the attorney’s motion for summary judgment was, in large part, denied.

Succinctly, this case stands as a checklist as to what an attorney should NOT DO in the course 

of properly representing a Purchaser.

Vincent J. Gallo, Esq.: "So, do you want to risk losing your down payment? Here is how to do it."

posted Apr 13, 2015, 4:42 AM by Pete Weinman

Han v. Furst, 2014 v NY Slip Op 04749 (118 AD3d 975) The Contract of Sale contained a 

mortgage contingency clause wherein the Purchaser was required to make an application to an 

institutional lender, to pursue the application with due diligence, and to cooperate in good faith 

with the institutional lender. The Court held that the Seller established, prima facie, that the 

Purchaser breached the Contract of Sale by failing to make an application to an “institutional 

lender”. There was evidence that the Purchaser made an inquiry to a mortgage broker, but the 

mortgage broker never submitted an application to a lending institution. Consequently the Court 

held that the Purchaser failed to comply with his or her obligation to submit an application to an 

“institutional lender”, thereby forfeiting their down payment as liquidated damages.

This case is important for a few reasons. An attorney representing a Purchaser should be 

extremely diligent in closely examining the precise language contained in the mortgage 

contingency clause, so as to not allow for a Purchaser to place himself or herself in harm’s way 

by failing to comply with his or her obligations therein, and thereby risking being held in default.  

Accordingly, if the precise language requires the applicant apply to an “institutional lender” and 

the borrower/applicant accepts this language, then apply to an institutional lender. If the 

borrower intends, or possibly intends to utilize the services of a mortgage broker, then he or she 

should be certain to allow for the inclusion of such language in the Contract of Sale, allowing for 

same, so as to not risk being held in default.

The Court was unclear as to how it would have held had the mortgage broker actually submitted 

an application on the borrower’s behalf to an “institutional lender”, and whether this would have 

sufficed for purposes of satisfying the mortgage contingency clause. Since the Court was not 

clear in this regard, one should not want to be the test case.  Accordingly, an attorney should be 

careful so as to craft the Contract language as to not place the borrower at risk of being held in 

default.

Salvatore V. Tillona (father of RCBA Member Thomas Tillona, Esq.) passed away.

posted Apr 8, 2015, 7:03 AM by Pete Weinman

Thomas Tillona, Esq.'s father, Salvatore V. Tillona passed away.  The wake will be tomorrowThursday, April 9, 2015 at Casey Funeral Home on Slosson Ave., from 2-4 and 7-9.  The funeral will be on Friday, April 10, 2015 at St. Teresa's Church on Victory Blvd. at 10:45 a.m. and burial will follow at Moravian Cemetery.

Carol Wojtowicz's Father Has Passed Away.

posted Apr 8, 2015, 6:16 AM by Pete Weinman

Dear Members:
Carol Wojtowicz's, former law secretary of Hon. Judith McMahon, father (Peter I. Wojtowicz) passed away.  The wake for him will be at Zajac Funeral Home, 319 24th Street, Niagara Falls, NY 14303 on Tuesday, April 14, 2015 at 2-4 and 7-9.  The funeral will be on Wednesday, April 15, 2015 at 9:30 a.m. at Divine Mercy Parish, 2437 Niagara Street, Niagara Falls, NY 14303.
 

Federal Magistrate Judge Vacancy.

posted Apr 7, 2015, 5:12 AM by Pete Weinman

Click HERE for the notice.

Spring 2015 RCBA Digital Journal is Now Available!

posted Mar 22, 2015, 2:12 PM by Pete Weinman   [ updated Mar 22, 2015, 2:13 PM ]

Click your choice, Apple iBook (enhanced) or Adobe PDF (standard).

  

Don't forget about the archive section of this website, which contains all your favourite past issues!!!
 - 



 

April 29, 2015 - RCBA CLE: Technology and Domestic Violence.

posted Mar 16, 2015, 5:42 AM by Pete Weinman   [ updated Mar 16, 2015, 5:42 AM ]

Click HERE for the flyer. 

Notice of Judicial Vacancies from the First Judicial District.

posted Mar 13, 2015, 5:37 AM by Pete Weinman

Click HERE for more info.

Justice Collini has Passed Away.

posted Mar 9, 2015, 9:09 AM by Pete Weinman

Dear Members:

It is with deep regret that I have to inform all of you of the passing of Justice Robert J. Collini.

There will be a viewing at Scaparci Funeral Home, 6989 Amboy Road, Staten Island, NY  10312
on Wednesday, March 11 from 2 - 4 p.m. and 7 - 9 p.m.
The Funeral Mass will be held on Thursday, March 12 at 9:30 a.m. at Church of St. Joseph - St. Thomas (St. Thomas), 6097 Amboy Road (enter on Maguire Ave.) Staten Island, NY 10312.
Rite of Christian Burial to immediately follow at Resurrection Cemetery.

Richard LaRosa's Mother (Lucy LaRossa) has Passed Away.

posted Mar 5, 2015, 6:41 AM by Pete Weinman

Dear Members:

It is with great sadness that I have to report that Richard LaRosa's mother  (Lucy LaRosa) passed away.

The wake will be on Sunday, March 8, 2015 from Matthews Funeral Home on Victory Blvd.
The wake will be from 2 - 4 p.m. and from 7 - 9 p.m.

The burial will take place on Monday, March 9, 2015.  There will be a mass at 10:15 a.m. at St. Charles Church on Monday.

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