November 9, 1999
Robin Nelson Wolfe, for Plaintiffs-Appellants.
Robert M. Milner, for Defendant-Respondent.
SULLIVAN, J.P., ROSENBERGER, LERNER, RUBIN, ANDRIAS, JJ.
Judgment, Supreme Court, New York County (Emily Goodman, J.), entered December 2, 1998, after a nonjury trial, in defendant's favor dismissing the complaint, unanimously affirmed, with costs.
Plaintiffs' cause of action for legal malpractice was properly dismissed on the grounds that plaintiffs failed to establish the existence of an attorney-client relationship with defendant, a fellow investor, with respect to the real estate transaction at issue (see, Sucese v. Kirsch, 199 A.D.2d 718) and, in any event, failed to establish that defendant's conduct fell below the ordinary standard of practice in the legal community (see, Thaler Thaler v. Gupta, 208 A.D.2d 1130, 1132). Nor do we perceive any reason to disturb the trial court's conclusion that defendant made no contractual commitment to accompany the escrow agent to the bank (see, Pub. Serv. Mut. Ins. Co. v. Hollander, 228 A.D.2d 283, 285, lv denied 88 N.Y.2d 816). Because plaintiffs failed to establish that defendant owed them a duty, either as an attorney or by reason of a contractual undertaking, plaintiffs' negligence and breach of contract claims were properly dismissed. Plaintiffs' additional claim in arguing this appeal, that defendant owed them a fiduciary duty, is improperly raised for the first time on appeal.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.