Legal Mal Suit Stemming From Construction Dispute Reinstated by NJ Appeals Court

A New Jersey appeals court on Tuesday reinstated a legal malpractice claim against a New Jersey lawyer sued by a former client in connection with a devastating 2005 fire that ravaged a historic mansion-turned-condominium complex in Mount Arlington.

The two-judge Appellate Division panel said a Morris County trial judge erred when he dismissed the lawsuit against Morris Plains solo Barry Levine because a factual dispute exists as to whether there was an attorney-client relationship with the plaintiff, a condo unit owner named Roberta Greening.

"Where there is conflicting evidence about those elements essential to an attorney-client relationship, the existence of the relationship is an issue of fact," said Appellate Division Judges Clarkson Fisher Jr. and Lisa Firko.

According to the decision, Greening is the owner of a unit in what is now known as Windemere Castle, a historic building built in the late 1800s that overlooks Lake Hopatcong.

The "castle" was later converted to condominiums and was heavily damaged in a Nov. 19, 2005, fire. It was since been rebuilt, and the reconstruction is a prominent issue behind the malpractice lawsuit.

Greening retained Levine to represent her in the purchase of one of the Windemere units in 1998, and retained him again in 1999 when she wanted to refinance her mortgage, according to the decision. She also retained Levine to buy a second unit in early 2005.

Nearly every unit was destroyed or heavily damaged in the 2005 fire, the court said.

The eight unit owners agreed to rebuild, and Greening referred the Windemere Castle Condominium Association to Levine for advice on how to proceed, but there was no written retainer agreement, according to the decision.

The association and the unit owners eventually hired a company called CMR Construction, which agreed to rebuild the castle for $1.37 million within nine months. But 18 months later, the job was still incomplete, and CMR cited "governmental changes" and submitted a "change order" adding $413,550 to the cost, according to the decision. Another bill for an additional $286,633 arrived later, the court said.

The reconstruction eventually was completed two years late, the ruling said.

Greening again consulted with Levine and said she could not afford to pay the additional costs.

She alleges that Levine urged her to file for bankruptcy protection. There was no retainer agreement, the court said.

At the same time, the association and the other unit owners, after also consulting with Levine, overruled Greening and agreed to pay CMR, and then filed a lawsuit against the company, alleging violations of the Consumer Fraud Act. That lawsuit ultimately was dismissed, according to the decision.

Greening eventually agreed to pay CMR $289,483, but defaulted, and the company obtained a judgment against her, the court said. Greening then sued Levine for malpractice, demanding that he pay her the $289,483 for giving her bad advice.

Morris County Superior Court Judge Maryann Nergaard dismissed the legal malpractice claim, holding that there was no attorney-client relationship between Greening and Levine.

Greening appealed, and the Appellate Division reversed in Tuesday's decision, which was unpublished.

"We conclude that, contrary to the judge's determination, plaintiff established a prima facie claim for legal malpractice because genuinely disputed material facts exist," the appeals court judges said.

Even if there were no written retainer, there could have been an implied relationship, the panel said.

"Whether or not defendant had a written retainer agreement with WCCA or plaintiff is irrelevant as the evidence shows that he was acting on behalf of each individual unit owner," the court said. "An inference can be drawn from the conduct between the parties that an attorney-client relationship formed to plaintiff."

Greening's attorney, Joshua Curtis of the Law Office of Michael Breslin Jr. in Hackensack, said he was pleased the lawsuit was reinstated.

"Lawyers have to be careful about who they're representing," Curtis said.

Levine's attorney, Mark Tallmadge of Florham Park's Bressler, Amery & Ross, said he was disappointed with the ruling, but added that he plans to file another summary judgment motion.

"Plaintiff was under an obligation to pay her share" of the reconstruction costs, Tallmadge said. "Every other tenant paid their share."