Failure To Seek Disqualification Waives Objection

The New York Appellate Division for the Second Judicial Department affirmed the dismissal of a legal malpractice claim arising from the representation of an entity formed to acquire, own and operate a Manhatten office building.

The court agreed with the trial court that the plaintiffs could not prove proximate cause for their alleged damages and

The Supreme Court also properly granted that branch of the defendants’ cross motion which was for summary judgment dismissing the cause of action alleging breach of fiduciary duty. Parklex alleged that the defendants breached their fiduciary duty by continuing to represent Deutsch after Deutsch and one of his affiliates asserted claims against it in the Holtkamp action. The defendants established their prima facie entitlement to judgment as a matter of law dismissing this cause of action by demonstrating that Parklex never sought to disqualify [the law firm] FZWZ from representing Deutsch and his affiliates in the Holtkamp action after FZWZ discontinued representing it in that action. Parklex’s failure to seek to disqualify FZWZ from representing its adversary in the Holtkamp action constituted a waiver of its objection to FZWZ’s legal representation. In opposition to this prima facie showing, Parklex failed to raise a triable issue of fact (citations omitted)

(Mike Frisch)