Isaacson v Law Off. of Norman L. Horowitz, LLC
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Isaacson v Law Off. of Norman L. Horowitz, LLC 2013 NY Slip Op 32598(U) October 18, 2013 Supreme Court, New York County Docket Number: 112174/2010 Judge: Joan A. Madden Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 10/23/2013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: !Jo (cJ _)o <7' ,, \ ~). 1;-1, \~.1 \LE'OPART Justice l/ Index Number : 112174/2010 QC\ 2 0 1on ISAACSON, MARK vs. NORMAN L. HOROWITZ, LLC. SEQUENCE NUMBER : 001 INDEX N O . - - - MQIIOH-f>ATE _ _ __ \{'S Qf\-\Gt::. ouN1Y cLERoRK C NEW'< DISMISS Mor10N sEQ. No. _ __ The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s)._ _ _ _ __ I No(s). _ _ _ __ Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - I No(s). - - - - - Upon the foregoing papers, it is ordered that this motion is ~ c t rJ.,.._ J l '-' 1 (,, < ( o d 1,. itJ rJ.l.- u 1, h. -f l..Q.._, Notice of Motion/Order to Show Cause -Affidavits - Exhibits r t [r-l-J~l'f..,-~J V~' ;/1, 1 /r or ,f'JJ,-/ D'.'(.~(,)iol.-' 1- Q/j,,,~· w (.) F (/) :::> .., g c w 0:: 0:: w u. w 0:: ~ Ui z ...J :::> 0 u.. (/) I- < (.) w w 0:: ~ (!) w z ~~ w ...J ~ 0 (.) u. - w z :c 0 I- 0 0 F o:: :::!: LL. Dated: OJJl, (_~ J0{ 3 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ...........................MOTION IS: ~CASE 0 0 DISPOSED GRANTED 0 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 0DONOTPOST DENIED NON-FINAL DISPOSITION OGRANTED IN PART 0 OoTHER SUBMIT ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 11 -----------------------------------------x MARK ISAACSON, IVAN BERKOWITZ, WILFRED KOPELOWITZ, GREAT COURT CAPITAL, LLC and STRATEGIC DEVELOPMENT PARTNERS, LLC, Plaintiffs,·:· f -against- LAW OFFICE OF NORMAN L. HOROWITZ-, LLC NORMAN L. HOROWITZ, ESQ., \L· No. 112174/10 Q~'12 ';:) 1,0\~ R\('S Qff\CE couN'~~~"oRK Defendants. -----------------------------------------x Joan A. Madden, J.: In this action alleging legal malpractice, defendants Law office of Norman L. Horowitz and Norman L. Horowitz, Esq. move, pursuant to CPLR 3211 (a) (1) and (7), to dismiss the complaint. Plaintiffs oppose the motion, which is granted for the reasons below. I. Background Plaintiffs Great Court Capital, LLC and Strategic Development Partners, LLC (tenants) leased premises located at 444 Madison Avenue, New York, New York from nonparty VII 444 Madison Lessee LLC (landlord). Plaintiffs Mark Isaacson, Berkowitz and Wilfred Kopelowitz of payment under the lease (guarantors) Ivan signed a guaranty (all plaintiffs together, plaintiffs). The guaranty was considered a "good guy" guaranty, in that the guarantors would be liable for rent only until the surrender of the premises by the tenants, in broom clean condition, and as otherwise required under the lease. 1 [* 3] o~ June 4, 2008, a burglary occurred on t where many items belonging to pla the burglary, plaintiffs, leased premises, iffs were stolen. Following lieving that the landlord was responsible for failing to deficiencies security at the ses, suspended payment of the rent from June 2008 onward. In July 2009, plaintiffs consulted def aintiffs' ri s obligations u~der s concerning the lease, order to determine whether they could extinguish their obligations thereunder by surrendering the p ses, despite the fact that the lease did not expire until 2015. Defendants advised plaintiffs that they could lawfully cut off their li ility for further payment of rent by vacating the premises, upon notice to the landlord. Upon landl struction from defendants, a iffs sent the written notice that they were vacating the premises as of July 31, 2009, with a line for the landlord to countersign. The landlord refused to do so, notifying pla in a letter to de accept su iff s of this fact s, where the landlord also declined to r of the lease, and instruct defendants that the landlord would ho d plaintiffs to their rent obligations. Defendants apparently did not inform aintiffs of this letter, and continued to advise plaintiffs to move forward with vacating the premises. Pla As of this date, plaintif iffs did so, as of July 31, 2009. allegedly owed the landlord $512,229.92 in rent. letter dated August 7, 2009, sent to defendants, landlord advised that it would not accept the surrender, nor cut off liabi ity for the continued payment of rent. also informed The landlord nts that the vacatur was insufficient to cut 2 [* 4] off the obligations of the guarantors, as the premises was not delivered in the condition required by the lease. According to plaintiffs, defendants did not inform plaintiffs of this letter either. On July 1, 2009 (before the vacatur of the premises), the landlord commenced a civil non-payment action against the tenants (Civil Court action). same time, It also commenced an action, at around the in Supreme Court, New York County, against the guarantors for non-payment under the guaranty (Supreme Court action). The parties discontinued the Civil Court action, and executed stipulations which, essentially, consolidated all the plaintiffs in the continuing Supreme Court action. The stipulation ending the Civil Court action served to sever the continued liability of the guarantors for payment of rent. Based on defendants' advice, the plaintiffs answered the Supreme Court complaint, and asserted a counterclaim for damages resulting from the burglary. The landlord moved for summary judgment, and for dismissal of the counterclaim. The motion was granted by Justice Debra James of this court, in a decision of the record dated April 13, 2010. The court adopted the landlord's arguments that the tenants had no right to terminate the lease, and that they had failed to vacate the premises in the condition required by the lease. found the counterclaim to be without merit, The court also in that the landlord had no duty to provide security services to plaintiffs, and that, in any event, the lease and the guaranty barred the bringing of a counterclaim. Plaintiffs retained their present counsel after the decision was rendered. On June 25, 2010, the court entered an order and 3 [* 5] judgment awarding the landlord $851,618.27 against the tenants, representing unpaid rent, interest and penalties. An award of $595,235.92 was rendered against the guarantors, under the guaranty. However, plaintiffs' new counsel eventually negotiated a settlement of the entire matter for $500,000. In the present action, commenced on September 15, 2010, plaintiffs seek damages against defendants on the ground that, but for defendants' faulty advice, plaintiffs could have settled with the landlord before vacating the premises, and before the commencement of any lawsuits, at a much lower figure than the $500,000 settlement amount which was eventually reached. In the present motion, defendants move to dismiss the complaint, on the ground that plaintiffs cannot prove that they would have fared better in settling the amount had they not heeded defendants' advice. II. Discussion On a motion to dismiss pursuant to CPLR 3211, we must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory. Sokoloff v Harriman Estates Development Corp., (2001); see also Leon v Martinez, 84 NY2d 83 96 NY2d 409, 414 (1994). "'Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss.'" Development Companies, LLC v Carbone, 2011), quoting EEC I, Inc. 85 AD3d 1110, 1111 (2d Dept v Goldman, Sachs ( 2005) . 4 Ginsburg & Co., 5 NY3d 11, 19 [* 6] "[A]n action for legal malpractice requires proof of three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and proof of actual damages." Schwartz v Olshan Grundman Frome AD2d 193, 198 AD2d 60, 63 & Rosenzweig, 302 (1st Dept 2003); see also Pellegrino v File, 291 (1st Dept 2002) (there must be a showing of "actual ascertainable," and not "speculative" damages"). Negligence is shown if a plaintiff can demonstrate that "the attorney failed to exercise that degree of care, skill and diligence commonly possessed by a member of the legal profession, and that this failure caused damages." AD3d 134, 140 Cosmetics Plus Group, Ltd. v Traub, 105 (1st Dept 2013). In order to show proximate cause, the plaintiff must show that "but for" the attorney's malfeasance, it would have attained a "more favorable result" in the underlying action. Aulisi, 79 AD3d 467, 467 (1st Dept 2010); Pozefsky v see also Keness v Feldman/ Kramer & Monaco, P.C., 105 AD3d 812, 813 (2d Dept 2013) (to make a case for malpractice, there must be a showing that but for the attorney's negligence, "there would have been a more favorable outcome in the underlying proceeding or that the plaintiff would not have incurred any damages"). If proximate cause is not established, the action must be dismissed "regardless of whether it is demonstrated that the attorney was negligent." Rosenzweig, Schwartz v Olshan Grundman Frome 302 AD2d at 198. & Moreover, the damages claimed for legal malpractice must be "actual and ascertainable" resulting from the proximate cause of the attorney's negligence Wojick, 105 A.D.2d 565, 567 Ressis v. (3d Dept 1984), lv. denied 64 N.Y.2d 5 [* 7] 609 (1985) main ta f rearg. denied 65 N.Y.2d 785 {1985). Defendants that plaintiffs cannot show actual ascertainable, non- lative for less than s, as t y actually settled amount of rent which was due to the vacatur of the ses for" defendants' advice, t settled th the landlord ately pr or 2009, and cannot show t t "but would have fared any better, or r less. Plaintiffs argue that their damages are not lative, because the sett:ernent of the matter for $500,000, when the judgment against the aintiffs for rent due was $851,618.27, shows that the landlo would have taken much less in settlement in 2009, prior to any litigation. Plaintiffs cla that r $500,000, a "discount" of 41% on settlement of the matter $851,618.27, shows that the landlord would have settl leas:: $302,215 2009, minimum, $198,000. for a savings on Pla for at aintif s' part of, at iffs suggest that this scenario is not speculat ve, as would be proven upon the deposition of the landlord, who wi l testify would have settled for a~ t~at ime as to what the landlord 2009, presumably affirmatively stating an amount less than $500,000. Plaintiffs cannot prove that "but for" defendants' advice they would have settled less than $500,000. cifically, there is no proof available that would show that the would have discounted the rent in specific amount, such as 41%. posit any test insufficient to est amount, andlord less a Moreover, contrary top intiffs' by the landlord's representative wou d be lish actual and ascertainable damages as he would be speculating as to the landlord mi 6 have done [* 8] ¢ years earlier. As plaintiffs cannot show any actual or ascertainable damages, and so, cannot prove a case of legal malpractice against defendants, however faulty the advice plaintiffs received from defendants may have been. Under these circumstances, defendants' motion to dismiss must be granted. See Za v. Reid & Priest, 19 92) (finding that legally malpractice 184 l\D2d 38 5 ( 1 s claimed to have been a action must be dismissed where proximate cause of the defendant's alleged legal malpractice action were too speculative and incapable of being proven with reasonable certainty) (internal ci ta ti on omitted) . III. Conclusion Accordingly, it is ORDERED that the motion brought by defendants Law Off ice of Norman L. Horowitz and Norman L. Horowitz, Esq. to di complaint is nted; and it is SS the ther ORDERED that the complaint is di ssed, with costs and sbursements to these defendants as taxed by the Clerk of Court, on the presentation of an appropriate bill of costs; and it is further ORDERED that the Clerk is directed to enter judgment accordingly. .·,1 Dated: OctoberjY, 2013
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