Emmanuel Assoc., LLC v Cullinan 2023 NY Slip Op 33478(U) October 5, 2023
Supreme Court, New York County Docket Number: Index No. 159627/2022
Judge: Lori S. Sattler is the story of a restaurant needing the outdoor and backyard space and then being squeezed by Local Law 11 scaffolding taking away the space. Were the attorneys to blame?

“

This case arises out of Cullinan’s efforts to operate a restaurant in a ground floor
commercial space with a backyard (collectively “Restaurant Space”) located at 937 Second Avenue in Manhattan (“Building”). As part of these efforts, Cullinan formed nonparty 937 Second Ave Corp. (“937 Second”), which leased the Restaurant Space from Plaintiff Emmanuel Associates, LLC (“Emmanuel”). According to Cullinan, he relied on statements made by Lee, whom Cullinan states is a manager of Emmanuel as well as a member of the Building’s Board (“the Board”), that, in addition to the indoor space and backyard which were the subject of the lease, the restaurant would be able to use the sidewalk outside the Building. Thereafter, the Board took steps to perform required Local Law 11 work on the Building, leading it to refuse to allow 937 Second to use both the backyard and sidewalk. A series of transactions and lawsuits followed, during which 937 Second Ave was represented by the Bailey Defendants.

On July 24, 2020, Emmanuel and 937 Second signed a lease for the Restaurant Space
(“Lease”) and Cullinan executed a guaranty for 937 Second’s obligations under the Lease
(“Guaranty”). According to Emmanuel, 937 Second defaulted on its obligations under the Lease on or about December 1, 2021 by failing to pay rent and other required fees and Cullinan likewise breached his obligations under the Guaranty.”

“In Motion Sequence 002, the Bailey Defendants contend that Cullinan fails to state a
cause of action for legal malpractice and breach of contract because they represented 937 Second, not Cullinan individually. They further argue that in any event Cullinan’s alleged damages are merely speculative because the Underlying Actions are still pending. They further argue that Cullinan’s claims for breach of fiduciary duty, breach of contract, and indemnification are duplicative of the malpractice claim. In the alternative, they request that this action be stayed pending the resolution of the Underlying Actions. Cullinan argues in opposition that his Answer has set forth facts to support all his causes of action.

To state a cause of action for legal malpractice, a party must allege that “(1) the attorney
was negligent; (2) the attorney’s negligence was a proximate cause of [the party’s] losses; and (3) [the party] suffered actual damages” (RTW Retailwinds, Inc. v Colucci & Umans, 231 AD3d 509, 510 [1st Dept 2023], citing Excelsior Capitol LLC v K & L Gates LLP, 138 AD3d 492 [1st Dept 2016]). As the Underlying Actions are ongoing, any assessment of damages arising from the Bailey Defendants’ representation would be purely speculative (see Kahan Jewelry Corp. v Rosenfeld, 295 AD2d 261 [1st Dept 2002] [malpractice action dismissed where underlying action remained pending]). Cullinan’s argument that the Bailey Defendants’ purported negligence delayed his pursuit of his “rights and remedies” against Emmanuel and Lee is similarly speculative. Therefore, the first counterclaim for malpractice is dismissed.”