Malpractice claim advances

Lawyer allegedly failed to cite in opinion letter newly proposed zoning law changes. Santo Nostrand LLC contacted an attorney at Cozen O’Connor to advise on whether it could build a Walgreens store and parking lot on a specified parcel of land in Bedford-Stuyvesant, Brooklyn. The attorney issued an opinion letter on May 24, 2007, which stated that Santo could construct the store and parking lot in conformity with current zoning laws. The Department of City Planning, however, had given public notice of its proposal to rezone the area on May 7, 2007, 17 days before the date of the opinion letter.

Allegedly relying on the letter, Santo secured several loans to buy the land and develop the site, but later found that the City Council had approved a rezoning in October 2007 that changed the zoning of the property and prevented Santo from developing the parking lot according to Walgreens’ specifications. Santo sued the attorney and Cozen O’Connor for legal malpractice and breach of contract, claiming that the attorney should have informed Santo of the proposed rezoning in the opinion letter.

Justice Eileen Bransten allowed the legal malpractice claim to go forward, finding that Santo had alleged enough facts to establish a cause of action. The court also found that disclaimers in the retainer agreement and opinion letter did not excuse the attorney from researching pending changes to zoning laws. Justice Bransten added that, even if the retainer agreement or opinion letter attempted to limit liability on this issue, the alleged failure to check for and apprise Santo of pending zoning law changes could have constituted malpractice.

Santo Nostrand LLC v. Cozen O’Connor, Index No. 602415/08 (N.Y.Cty.Sup.Ct. July 14, 2009) (Bransten, J.).

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