On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4812-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves, and Koblitz.
In this legal malpractice action, plaintiff Marina Vasquez appeals from the order of the Law Division dismissing her complaint against her former attorney Marc Macri and the law firm of Sokolich & Macri. The court granted defendants' motion to dismiss plaintiff's complaint based on her failure to produce expert opinion articulating the standard of professional care applicable to defendants in the course of representing plaintiff in the purchase of her home. The court also rejected plaintiff's invocation of the common knowledge doctrine as a substitute for expert testimony, finding that a reasonable lay juror was not capable of determining what an attorney's responsibilities are in connection with representing a buyer of residential property.
We reverse. While, as a general proposition, the nature and scope of an attorney's professional responsibilities to a client in a real estate closing may be outside the ken and experience of the average lay juror, Macri's deposition testimony has rendered this issue moot. The discrete claim asserted by plaintiff in this litigation concerns Macri's failure to ensure that the seller delivered to her, at or before the closing of title, a Certificate of Continued Occupancy (CCO) indicating that the property is in compliance with local zoning and construction codes.*fn1 The CCO is issued by the municipality where the property is located, in this case the Borough of Fairview (the Borough).
In the course of his deposition, Macri conceded that it was his responsibility, as the buyer's attorney, to ensure that the seller obtain and deliver, at or before the closing of title, a valid CCO issued by the Borough. Macri further conceded that at the time of closing, the seller's real estate agent provided him with a Certificate of Occupancy (CO). Although, according to Macri, a CO is a document that indicates that the property passed a more stringent inspection, a CO is not a substitute for the required CCO. Macri accepted the CO under the mistaken belief that it was in fact a CCO. Macri then proceeded to close title under this admittedly factually mistaken -- and, from plaintiff's perspective, legally significant -- belief that he had done all that was required of him for his client to receive clear title to the property.
In the course of his deposition, Macri testified that at the time this closing occurred in November 2006, more than fifty percent of his practice was related to real estate residential transactions in northern Hudson County and southern Bergen County area. Because the particular zoning and occupancy requirements varied from municipality to municipality, Macri was asked at his deposition how he knew what the particular requirements were for any given municipality. This prompted the following colloquy.
MACRI: Take the Lawyers Manual, you flip to the page of the town, tell you one or two-family requires CCO -- sometimes they're required. Or they'll tell you multiple family, not required.
Q. The Lawyers Diary we call it -- the red book.
Q. I looked in it for Fairview and it said only C of O required -- CO, not CCO.
Is that what you looked at?
MACRI: I don't know if I looked at it for ...