Summary
holding that "plaintiffs failed to demonstrate that they would have sold the subject garage but for defendants' alleged malpractice"
Summary of this case from Candela Entm't, Inc. v. Davis & Gilbert, LLPOpinion
2012-03-29
EIGHTH AVENUE GARAGE CORP., et al., Plaintiffs–Appellants, v. KAYE SCHOLER LLP, et al., Defendants–Respondents.
Schwartz & Ponterio, PLLC, New York (Matthew F. Schwartz of counsel), for appellants. Kaye Scholer LLP, New York (Jennifer B. Patterson of counsel), for respondents.
Schwartz & Ponterio, PLLC, New York (Matthew F. Schwartz of counsel), for appellants. Kaye Scholer LLP, New York (Jennifer B. Patterson of counsel), for respondents.
DeGRASSE, J.P., FREEDMAN, RICHTER, ROMÁN, JJ.
Judgment, Supreme Court, New York County (Bernard J. Fried, J.), entered April 8, 2011, dismissing the amended complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered February 17, 2011, which granted defendants' motion to dismiss the amended complaint, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiffs failed to allege facts in support of their claim of legal malpractice that “permit the inference that, but for defendants' [alleged negligence], [they] would not have sustained actual, ascertainable damages” ( Pyne v. Block & Assoc., 305 A.D.2d 213, 760 N.Y.S.2d 30 [2003] ). Although they maintain that as a result of defendants' negligence in failing to obtain an estoppel certificate from the landlord of the premises where the garage is located, they were unable to sell the subject parking garage, they failed to demonstrate that they would have sold the subject garage but for defendants' alleged malpractice. In any event, plaintiffs are precluded by the doctrine of collateral estoppel from litigating the issue of whether the landlord's failure to give them the certificate damaged them, as that issue was raised and decided against plaintiff Eighth Avenue Garage Corporation in a prior proceeding ( Eighth Ave. Garage Corp. v. H.K.L. Realty Corp., 60 A.D.3d 404, 875 N.Y.S.2d 8 [2009], lv. dismissed 12 N.Y.3d 880, 883 N.Y.S.2d 174, 910 N.E.2d 1003 [2009]; see Hirsch v. Fink, 89 A.D.3d 430, 931 N.Y.S.2d 866 [2011] ).
Supreme Court properly considered the evidence submitted on the motion, including the e-mails, which conclusively disposed of plaintiffs' claims ( see Pitcock v. Kasowitz, Benson, Torres & Friedman LLP, 74 A.D.3d 613, 903 N.Y.S.2d 43 [2010] ). Accordingly, it is of no moment that discovery has not been conducted. In addition, plaintiffs have not asserted that facts essential to justify opposition to the motion may have existed but could not be stated ( see CPLR 3211[d] ).
We have considered plaintiffs' remaining arguments and find them unavailing.