Abyssinian Dev. Corp. v Bistricer

Abyssinian Dev. Corp. v Bistricer 2012 NY Slip Op 07374 Decided on November 8, 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 November 8, 2012
Andrias, J.P., Saxe, Moskowitz, Abdus-Salaam, Manzanet-Daniels, JJ.
8410 115576/08

[*1]Abyssinian Development Corporation, et al., Plaintiffs-Respondents,

v

David Bistricer, et al., Defendants-Appellants.




Stahl & Zelmanovitz, New York (Joseph Zelmanovitz of
counsel), for appellants.
Windels Marx Lane & Mittendorf, LLP, New York (Mel P.
Barkan of counsel), for respondents.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered May 16, 2011, which granted plaintiffs' motion for summary judgment dismissing the counterclaim for fraud, unanimously reversed, on the law, without costs, and the motion denied.

The motion court confused defendants' counterclaim for legal and consulting fees as consequential damages for plaintiffs' alleged fraud with plaintiffs' claim for similar fees pursuant to the parties' letter of intent, and erred in finding that defendants had not proved damages, inasmuch as they were not obligated to do so in opposition to plaintiffs' showing. Even if plaintiffs' motion was predicated on defendants' failure to show
loss causation (see e.g. Laub v Faessel, 297 AD2d 28, 30-31 [1st Dept 2002]), because they had engaged their attorneys and consultants prior to entering into negotiations with plaintiffs, plaintiffs failed to show that defendants did not incur fees for professional services during their negotiations and while waiting
for plaintiffs to execute their copy of the letter of intent.

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

ENTERED: NOVEMBER 8, 2012, a.m.

CLERK