1309 LLC v. Lewis Eliezer Garfinkel, etc., appellant-respondent.

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Supreme Court, Appellate Division, Second Department, New York.

1309 Avenue P, LLC, respondent-appellant, v. Lewis Eliezer Garfinkel, etc., appellant-respondent.

2010–05793 (Index No. 22347/08)

Decided: May 31, 2011

REINALDO E. RIVERA, J.P. PETER B. SKELOS ANITA R. FLORIO LEONARD B. AUSTIN, JJ. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for appellant-respondent. Hall & Hall, LLP, Staten Island, N.Y. (John G. Hall of counsel), for respondent—appellant.

Argued—April 28, 2011

DECISION & ORDER

In an action, inter alia, to recover damages for architectural malpractice and breach of contract, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated May 26, 2010, as denied his motion for summary judgment dismissing so much of the complaint as sought to recover lost profits, and the plaintiff cross-appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment on the issue of liability.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying the defendant's motion for summary judgment dismissing so much of the complaint as sought to recover lost profits, and substituting therefor a provision granting the motion;  as so modified, the order is affirmed, with costs to the defendant.

The Supreme Court should have granted the defendant's motion for summary judgment dismissing so much of the complaint as sought to recover lost profits that the plaintiff alleged it could have obtained from the construction of a six-story, rather than a four-story, building.   The defendant established as a matter of law that the this claim was too speculative, as there was no evidence that the plaintiff would have been able to obtain approval to construct a six-story building (see Hudson Eng'g Assoc. v. Kramer, 204 A.D.2d 277, 277–278;  Brown v. Samalin & Bock, 168 A.D.2d 531, 532;  see generally Ashland Mgt. v. Janien, 82 N.Y.2d 395, 403;  Kenford Co. v. County of Erie, 67 N.Y.2d 257, 262;  Reads Co., LLC v. Katz, 72 AD3d 1054, 1055).

However, the Supreme Court properly denied the plaintiff's cross motion for summary judgment on the issue of liability.   The plaintiff failed to establish its entitlement to judgment as a matter of law.   The plaintiff's submissions revealed that triable issues of fact exist, inter alia, as to the defendant's liability (see QB, LLC v. A/R Architects, LLP, 19 AD3d 675, 677, citing Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co. Inc.], 3 NY3d 538, 542, and 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn of Am., 259 A.D.2d 75, 83).

RIVERA, J.P., SKELOS, FLORIO and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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