We admit that sometimes we do not understand how a defendant can actually raise a defense that both it and the Court knows won’t pass a smell test.  Nevertheless, the defense gets raised. 

In M & R Ginsburg, LLC v Segal, Goldman, Mazzotta & Siegel, P.C. ; 2011 NY Slip Op 08877
Decided on December 8, 2011 ; Appellate Division, Third Department we see a situation in which land owner is subject to a lease it gave Rite Aid.  Landowner cannot sell or least to another pharmacy within certain geographical area. (Defeinitely not Manhattan). 
 

"In support of their contention that they exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, defendants submitted an affidavit from defendant Debra Lambek in which she claimed that, although the Rite Aid lease restriction was referred to as part of the proposed 2005 contract, she did not include any reference to it in the 2006 contract because it was personal to plaintiff and, as such, did not apply to the premises being sold. Further, according to Lambek, plaintiff was aware that no pharmacy restriction was included in the 2006 contract prior to executing it. Defendants also submitted an expert affidavit in support of their position. Plaintiff opposed the motion with an affidavit from one of its members, Michael Ginsburg, in which he claimed that defendants were aware that he did not want the property to be sold for use as a pharmacy and that, when he was presented with the 2006 contract of sale, it was his understanding that defendants had accounted for his concerns. Plaintiff also submitted its own expert affidavit as well as Lambek’s examination before trial testimony from the fraud action. There, Lambek had testified that, as part of the negotiation of the 2005 sale, plaintiff demanded an indemnification clause to protect it against any claim by Rite Aid that plaintiff had violated the lease restriction, and that she forgot to include any reference to the restriction in negotiating the 2006 contract. Given this conflicting evidence, issues of fact exist as to whether defendants were negligent (see Wittich v Wallach, 201 AD2d 558, 559 [1994]; Canavan v Steenburg, 170 AD2d 858, 859 [1991]; Bloom v Kernan, 146 AD2d 916, 917 [1989]).

As for actual damages, Supreme Court concluded that whether the developer would build a pharmacy and whether Rite Aid would sue or withhold rent as a result were speculative. Accordingly, Supreme Court held that plaintiff was incapable of establishing that defendants’ negligence was the proximate cause of any damages. We cannot agree."
 

"Further, despite defendants’ contention that the Rite Aid lease restriction is personal to plaintiff and does not apply to the premises being sold, a triable issue of fact exists as to whether the development of a pharmacy would cause Rite Aid to seek to enforce the lease restriction against plaintiff. Specifically, Ginsburg recounts in his affidavit that he contacted Lambek when, after the 2006 contract was executed, he learned of the developer’s intent to build a pharmacy. He contends that she told him that the developer could not build a pharmacy, only to later acknowledge that the pharmacy restriction had not been accounted for in the contract. Ginsburg then met with Lambek and Jeffrey Siegel, a member of defendant law firm. According to Ginsburg, they never told him that Rite Aid would not seek to enforce the restriction, but instead that he was facing litigation whether he closed on the contract or not. Defendants concede that Lambek and Siegel advised Ginsburg that Rite Aid may sue plaintiff if a pharmacy were to be developed on the property, but they argue that such a lawsuit would be defensible. Their argument, however, is irrelevant. "