Legal Malpractice and the Adult Use Industry
The Adult Use industry was the subject of constitutional litigation in the City of New York, and was essentially limited to certain non-residential corridors. In DeWitt, New Yorkits use is also limited. What happens when an operator hires a law firm to help set up an adult use industry, and finds that the warehouse and buildings cannot be used for that purpose?
Hotaling v Sprock 2013 NY Slip Op 04170 Released on June 7, 2013 Appellate Division, Fourth Department is just such a situation. "Plaintiff commenced this legal malpractice action seeking damages for the alleged negligence of defendants in failing to determine that a Town of Dewitt zoning ordinance prohibited him from operating an "adult use" business in the building he purchased for that purpose. Zonen, Ltd. (Zonen), the corporation formed by plaintiff to operate the business, has operated a retail establishment in the building, which includes "adult use" inventory, since 2001. Supreme Court granted defendants' motion for summary judgment dismissing the third amended complaint on the ground that plaintiff failed to raise an issue of fact whether he sustained actual and ascertainable damages, an
" essential element of [a] legal malpractice cause of action' " (Malachowski v Daly, 87 AD3d 1321, 1321; see generally Dombrowski v Bulson, 19 NY3d 347, 350). "
"Nevertheless, viewing the submissions of the parties in the light most favorable to plaintiff, as we must (see Victor Temporary Servs. v Slattery, 105 AD2d 1115, 1117), we conclude that the court erred in determining that plaintiff failed to raise an issue of fact whether he has sustained damages for loss of rent (cf. Malachowski, 87 AD3d at 1323). We therefore modify the judgment accordingly. Plaintiff alleges in the third amended complaint, as amplified by his response to defendants' interrogatories, that he is unable to lease a portion of the property to Zonen or any other entity because defendants failed to advise him of zoning ordinances governing parking restrictions. Plaintiff also averred in his affidavit in opposition to the motion that his efforts to lease the warehouse were prohibited by the Town of Dewitt inasmuch as the property lacks the required number of parking spaces. Moreover, in response to defendants' interrogatories, plaintiff submitted documentary evidence establishing that he has been damaged by the loss of rent for 2,500 feet at a rate of $3.50 per square foot. "