Wong v. Robin C.C. Wu , 683 N.Y.S.2d 249 ( 1999 )

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered September 15, 1998, which, in an action for legal malpractice arising out of real estate transactions in which plaintiffs were the buyers, denied defendant’s motion for summary judgment dismissing the complaint, or, in the alternative, for a stay of the action pending resolution of the action plaintiffs brought against the seller in the underlying transaction, unanimously affirmed, with costs.

Issues of fact exist as to whether defendant exercised that degree of skill, care and diligence commonly possessed by legal practitioners. Such issues are raised by, inter alia, expert evidence that defendant should have advised plaintiffs concerning their right to cancel when the seller was not ready to perform on the closing date, should have advised plaintiffs concerning the omission of a time-of-the-essence clause, which would have entitled plaintiffs to return of the stage payments upon the seller’s default, and should have verified that the threshold construction requirements for release of the stage payments had been satisfied. Concerning the request for a stay, we see no reason for compelling plaintiffs to pursue their remedies against the seller first. Concur — Ellerin, J. P., Nardeili, Rubin and Andrias, JJ.