

Salyamov v Lyhovsky (2017 NY Slip Op 00929)





Salyamov v Lyhovsky


2017 NY Slip Op 00929


Decided on February 7, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 7, 2017

Tom, J.P., Renwick, Saxe, Feinman, Gesmer, JJ.


3009 152452/15

[*1]Zafar Salyamov, individually and as President and sole shareholder of FEA 23rd Inc., Plaintiff-Respondent,
vBen Lyhovsky, etc., Defendant-Appellant.


Steinberg & Cavaliere, LLP, White Plains (Steven A. Coploff of counsel), for appellant.
Leon I. Behar, P.C., New York (Mark Balken of counsel), for respondent.

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]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 7, 2017
CLERK


