As is true in a large percentage of legal malpractice cases, there is strong evidence that the attorneys departed from good and accepted practice (a “mistake”).  Here, in Iannucci v Kucker & Bruh, LLP   2015 NY Slip Op 51490(U)   Decided on October 7, 2015   Supreme Court, Kings County
Rivera, J., there are indications that Plaintiff could make out a case with discernible departures by the attorney.  However, this case, as do so many others, founders on proving that but for these mistakes there would have been a better and more reasonable economic outcome for Plaintiffs.

“The verified complaint asserts the following salient facts, among others. In September 2002, Team Obsolete Promotions, Inc., which is owned by Robert Iannucci and Sonia Ewers, contracted with The Garden City Company (hereinafter GCC) to purchase 325 Gold Street, Brooklyn, New York (hereinafter the subject property).

On November 20, 2002, the closing date of the sale, GCC executed an assignment of all its interest in past due rent and all claims against past or future tenants of the subject property to Robert Iannucci and Sonia Ewers. On that date, the subject property was zoned for commercial and not residential use and had three of its seven floors illegally occupied by individuals for residential purposes. On that date, GCC already had ongoing eviction proceedings pending against the illegal residents of the subject property.

Sometime prior to November 20, 2002, the plaintiffs hired the defendants, who had been working for GCC at an hourly rate, to continue their ongoing eviction litigation for the subject property. The defendants Saul Bruh and Andrew Bittens are lawyers and partners in the law firm of Kucker and Bruh, LLP.

The first cause of action is for legal malpractice. The claim is based on the alleged failure to take prompt action when the defendants learned that several tenants had abandoned the premises or had divided their leaseholds without the consent of the owners. In addition, when the defendants became aware that the City of New York was in the process of changing the zoning status of the building and failed to take swift action. Plaintiffs’ claim that as a result of defendants’ dilatory behavior they lost substantial rental income.

The second cause of action is for an accounting and a refund. This claim is based on defendants’ alleged over-billing for the legal work it performed.”

“Plaintiff seeks to hold the defendants responsible for the rental income that it lost by the inability to lease the units that were illegally occupied by the individuals who were the subject of pending eviction proceeding. Plaintiff’s claim is that the pace of the defendants prosecution of evicting the illegal occupants resulted in the loss of the rental value of the those spaces. Plaintiff does not allege that tenants seeking to rent the illegally occupied units were known or actually existed prior to the eviction of the units in question.

The movants do not dispute that they were hired to represent the interest of the plaintiff in evicting the illegal tenants of the subject property. Nor do they dispute that the legal representation was at an hourly rate pursuant to an oral agreement. The thrust of their motion is [*2]that plaintiff is unable to prove that their legal representation proximately caused the plaintiff any ascertainable damage.

Indeed, plaintiff’s claim of the loss of rental income from potential future tenants is based on speculation. Conclusory allegations of damage based on speculation are insufficient to support a legal malpractice claim (see Siwiec v Rawlins, 103 AD3d 703 [2nd Dept 2013]; see also, Bua v Purcell & Ingrao, P.C., 99 AD3d 843 [2nd Dept 2012]).

The movants have made a prima facie showing that the plaintiff is unable to prove at least one of the essential elements of a legal malpractice cause of action (Duque v Perez, 95 AD3d 937 [2nd Dept 2012] thus shifting the burden to the plaintiff to raise a triable issue of fact.

Plaintiff’s voluminous opposition papers merely repeat and reassert the same conclusory and speculative claims of lost rental income purportedly due to the movants allegedly slow prosecution of eviction proceedings. Plaintiff’s opposition papers do not raise a triable issue of fact. Accordingly, plaintiff’s first cause of action for legal malpractice is dismissed.”