317 W. 54 Owners Corp. v Beta I, LLC
Annotate this CaseDecided on October 18, 2005
Supreme Court, New York County
317 West 54 Owners Corp., STERLING MIDTOWN ASSOCIATION, LC, VIRGINIA YETERIAN, MIA BAY, FERNANDO PEREZ, JOHN JAY COLLEGE FDN, RICHARD J. BRENNAN, KRISTINE JEPSON, KAREN PRUNCZIK, LORRAINE CONDOS, STEPHEN KOSTECKE, MAURICE N. PHILLIPS, III, MICHAEL J. BRAMS, EDWARD F. CLINTON, JR., CANDY DARLING, JOHN G. MILLER, ROBERT E. GRESHES, WILLIAM T. DEANE, ROBERT J. BOYLE, KEVIN J. MCCORMICK, STEPHEN MULLEN, SUGANYA SOCKALINGAM, NANCY VAZQUEZ, GEORGE DESSART, H. CORDON, MICHELE LAFLEUR, ALAN WILLIAMS, SHAM MOSHER, MAL MOSHER, GISELE MASSON, ROBERT BERNER, JOSE ANTONIO RUIZ, JOSE FERMIN, T. O'LAUGHLIN, and GARY STILOVICH, Plaintiffs,
against
Beta I, LLC, BETTINA EQUITIES COMPANY, PELHAM CONSTRUCTION CORP., MACRO ENTERPRISES, LTD, THE CANTOR SEINUK GROUP, INC. and SOIL MECHANICS DRILLING CORP. AND SOIL MECHANICS DRILLING & TESTING CORP., Defendants.
Richard Klein, D.C., Plaintiff, -against-
against
Beta I, LLC, BETTINA EQUITIES COMPANY, PELHAM CONSTRUCTION CORP., MACRO ENTERPRISES, LTD, THE CANTOR SEINUK GROUP, INC. and SOIL MECHANICS DRILLING CORP. AND SOIL MECHANICS DRILLING & TESTING CORP., Defendants.
123504/02
Joan Madden, J.
Plaintiff Richard Klein, D.C. ("Klein") moves for reargument and renewal of this court's [*2]decision and order dated August 4, 2005 ("the original decision") to that the court dismissed Klein's claim for lost profits. Defendant Cantor Seinuk Group, Inc. ("Cantor") opposes the motion and cross moves for reargument of the original decision insofar as it denied its motion for summary judgment. Defendant Macro Enterprises, Ltd. ("Macro"), defendants Beta I, LLC ("Beta"), Bettina Equities Co. ("Bettina"), and Pelham Construction Co. ("Pelham"), and defendant Soil Mechanics Drilling Corp and Soil Mechanics Drilling and Testing Corp. (together "Soil") oppose the motion, and cross motion.
Plaintiff 317 West 54 Owners Corp. ("Owners Corp.") is a cooperative cooperation which owns the property at 317 West 54th Street in Manhattan (hereafter "317 West"). The individual plaintiffs are shareholders residing at 317 West. Beta I and Bettina are, respectively, the owner and managing agent for 321 West. Pelham was the construction manager in connection with renovation performed at 321 West. Cantor was the structural engineer that designed the 321 West project. Macro was a subcontractor that performed demolition and excavation work at 321 West. Soil was engaged to evaluate and test subsurface conditions at the site.
Klein, a shareholder who operated chiropractic office at 317 West, commenced a separate action against Beta I, Bettinna, Pelham and 321 West and subsequently obtained permission to amend his complaint to assert claims against Macro, Soil, and Cantor. The Owners Corp. action and the Klein action have been consolidated.
The actions arise out of construction and demolition work performed at 321 West 54th Street ("321 West"), which is the building adjacent to 317 West. It is alleged that the demolition work performed by the defendants included demolishing a sidewalk and courtyard separating the two properties without permission, causing substantial damage to 317 West, including cracks along the west wall of 317 West. Owners Corp discovered the damage on November 9, 1999.
Klein alleges that in April 1999, the demolition work at 321 West created a flood after which he had to replace the floor. According to Klein, the demolition and excavation work has caused a sharp drop in the floor. He contends that as a result of the required repairs being made to 317 West, he was forced to relocate his chiropractic offices elsewhere. The claim for damages includes loss of business, moving and packing costs, and the difference between the rent of the relocated office and the rent paid at 317 West. Klein also alleges that as a result of the damage to his unit, he lost the chance to hire three new chiropractic associates, and claims lost profits of $2 million.
In the original decision the court dismissed Klein's lost profits claim, finding that Klein failed to submit sufficient evidence to support an award of damages for lost profits, particularly as he never hired, or actually operated his practice, with the two additional chiropractors. The court also reject Klein's argument that the addition of the chiropractors represented simply an expansion of his business, and noted that Klein provided no evidence regarding the earnings of his solo practice. In addition, the court found that the statements in the expert affidavit submitted by Klein were conclusory and based wholly on Klein's statements in his affidavit and thus were insufficient to rebut defendants' assertion that damages for lost profits are speculative.
Klein moves for reargument of this court's original decision dismissing his claim for lost profits, arguing that the court erred insofar as it declined to accept as true in Klein's amended complaint and that the statements the affidavits submitted from Klein and his expert. Alternatively, Klein seeks renewal of the motion based on an a second affidavit from his expert, [*3]Mr. Surasky, and a copy of his federal income tax returns for the relevant period.
A motion for reargument is addressed to the discretion of the court, and is intended to give a party an opportunity to demonstrate that the court overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law. See, Foley v Roche, 68 AD2d 558, 567 (1st Dept 1979).
In this case, reargument is granted, and upon reargument, the court finds that Klein's claim for loss profits is sufficient to state a cause of action. "Lost profits are recoverable as the natural consequence of a breach of contract or the commission of a tortious act. Although the amount of such damages need not be proven to exactitude, they must be demonstrated with sufficient certainty, and cannot be speculative or contingent." Levine v. American Federal Group, Ltd., 180 AD2d 575, 577 (1st Dept 1992) (citations omitted). Here, contrary to the court's original decision, at this stage of the litigation it is premature to dismiss Klein's lost profits claim as speculative, even though the proposed expansion of Klein's practice to add three chiropractors has many characteristics of a new business venture, thus making it difficult to prove lost profits. See Miller v. Lasdon, 78 AD2d 628 (1st Dept 1980)(reversing trial court decision to dismiss lost profits claim and finding that under the circumstances plaintiff should have an opportunity to prove the lost profits at trial); Cifone v. City of Poughkeepsie, 234 AD2d 331 (2d Dept 1996)(reversing trial court's grant of summary judgment dismissing lost profits claim noting that there is no "per se rule" precluding a new business venture from recovering lost profits and that defendants failed to make a showing that they were entitled to judgment as a matter of law dismissing the lost profits claim).
In reinstating Klein's lost profits claim, the court makes no determination as to whether Klein will be able to prove that he is entitled to lost profits under the circumstances of this case. Next, as the lost profits claim has been reinstated, the court need not consider Klein's renewal motion.
Cantor cross moves for reargument of the court's decision which denied its motion for summary judgment on the ground that the damage to 317 West was caused by demolition, excavation and construction work and the underpinning of 321 West, and that it was not involved in this work or designing the underpinning. As the structural engineer in the project, Cantor is alleged to have breached its duty of care by failing, inter alia, to properly design or to approve a proper design for the excavation of the structural foundation of the building, failing to provide a proper underpinning for the foundation, failing to thoroughly analyze data obtained by geo-technical studies, and failing to properly monitor and supervise the work.
In support of its motion, Cantor relied on various affidavits and documentary evidence, some of which was submitted in connection with a November 1999 order to show cause made by Owners Corp. to enjoin defendants from continuing to harm their property. The parties opposing the motion, pointed out that discovery was in its early stages, Cantor has provided no discovery, and no depositions have been taken. It also relied on certain documentary evidence from which it could be inferred that Cantor has some involvement with the work resulting in damage to the west wall of 317 West.
In its original decision, the court wrote that although Cantor's involvement did not necessarily indicate a basis for liability, the preliminary documentary evidence revealed that it would be premature to grant Cantor summary judgment particularly as facts essential to opposing [*4]the motion may exist that are largely within Cantor's knowledge, and that the parties should have an opportunity to depose Cantor.
In its motion for reargument, Cantor essentially asserts that the court overlooked certain documentary evidence that demonstrate that it had no role in the work that resulted in damage to 317 West. Under the circumstances, here, as Cantor was the structural engineer on the project and there are not contracts designating the roles of the various contractors at that site, and in view of the documentary evidence suggesting Cantor's involvement, the court adheres to its original decision denying Cantor's motion for summary judgment. This denial, however, is without prejudice to Cantor's again seeking summary judgment upon either the completion of depositions or all discovery in this matter.
In view of the above, it is
ORDERED that the Klein's motion for reagument is granted and, upon reargument, his lost profits claim is reinstated; and it is further
ORDERED that Klein's motion for renewal is denied as moot; and it is further
ORDERED that Cantor's motion of reargument is denied.
DATED: October 18, 2005
J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
