Eighth Ave. Garage Corp. v Kaye Scholer LLP

Eighth Ave. Garage Corp. v Kaye Scholer LLP 2012 NY Slip Op 02402 Decided on March 29, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 29, 2012
DeGrasse, J.P., Freedman, Richter, Román, JJ. 7234-
7235 150228/09

[*1]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.

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 AD2d 213 [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 AD3d 404 [2009], lv dismissed 12 NY3d 880 [2009]; see Hirsch v Fink, 89 AD3d 430 [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 AD3d 613 [2010]). Accordingly, it is of no moment that discovery has not been conducted. In addition, plaintiffs have not asserted that facts essential to justify [*2]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.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 29, 2012

CLERK