Opinion
13198 Index No. 156097/16 Case No. 2020-03226
02-25-2021
VPC PROJECTS, LLC, Plaintiff–Appellant, v. GOLENBOCK EISEMAN ASSOR BELL & PESKOE, LLP, Defendant–Respondent. [and a third-party action]
Law Office of Daniel L. Abrams, PLLC, New York ( Daniel L. Abrams of counsel), for appellant. Melito & Adolfsen P.C., New York ( John H. Somoza of counsel), for respondent.
Law Office of Daniel L. Abrams, PLLC, New York ( Daniel L. Abrams of counsel), for appellant.
Melito & Adolfsen P.C., New York ( John H. Somoza of counsel), for respondent.
Acosta, P.J., Renwick, Singh, Mendez, JJ.
Order, Supreme Court, New York County (Margaret A. Chan, J.), entered June 30, 2020, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff contends that the closing of its cafe´/bar was caused by defendant's erroneous advice that its insurance would not indemnify it in, or defend it against, a noise-based nuisance action brought against the bar by its residential neighbors and that, had it been correctly advised, it would not have closed the bar and would have recouped its $1 million investment in the bar's storefront. Because the calculation of plaintiff's damages would rely on gross speculations about future events, namely, that the bar would have stayed open until such time as it became profitable and the profits matched plaintiff's significant investment, plaintiff cannot prove that defendant's malpractice, if any, proximately caused those damages ( see generally Phillips–Smith Specialty Retail Group II, L.P v. Parker Chapin Flattau & Klimpl, LLP, 265 A.D.2d 208, 210, 696 N.Y.S.2d 150 [1st Dept. 1999], lv denied 94 N.Y.2d 759, 705 N.Y.S.2d 6, 726 N.E.2d 483 [2000] ; Lisi v. Lowenstein Sandler LLP, 170 A.D.3d 461, 95 N.Y.S.3d 190 [1st Dept. 2019] ). The record is devoid of evidence tending to support the speculations. Plaintiff's principal testified that the bar had doubled its sales in the year preceding its closure, but there is no evidence that the bar ever was profitable.