Halperin v Held & Hines, LLP 2024 NY Slip Op 31415(U) April 12, 2024
Supreme Court, New York County Docket Number: Index No. 652124/2019
Judge: Andrea Masley is another in a long line of New York legal malpractice cases arising from real estate troubles. Here, damages were deemed too speculative to proceed on the case.

“This matter arises from plaintiff Stephen R. Halperin3 and Jamie Berman
Halperin’s purchase of a one-bedroom apartment located at 32 West 20th Street,
Apartment 8S, New York, New York (Apartment) for $2,530,000. (NYSCEF 279,
Storgion4 Appraisal Report at 3-4;5 NYSCEF 278, Contract ,m 1.1.1, 1.16.) On March 9,
2017, the Halperins executed a contract of sale for the Apartment. (NYSCEF 278,
Contract.) The transaction closed on May 24, 2017. (NYSCEF 438, Response to Rule
19-a Statement ,I 2.) The HH defendants represented the Halperins in connection with
the transaction. ( See NYSCEF 278, Contract ,I 1.2.2; NYSCEF 273, Held’s 2/8/2017
email to Stephen.) The Douglas Elliman Defendants were the Halperins’ broker.
(NYSCEF 278, Contract ,I 1.5; NYSCEF 246, tr. At 22:5-11 [Stephen Depa].) Douglas
Elliman, by nonparties Matthew George and Michael Moran, was also the broker of the
sellers, Stephan Van Dam and Gail Pellett. (NYSCEF 278, Contract ,I,I 1.1.1, 1.5;
NYSCEF 248, tr. at 178:20-179:3 [Van Dam Depa].)”

“The premises adjacent to the Building7 are owned by Panasia Estate Inc.
(Panasia) and are known as 31-33 West 19th Street, Manhattan. (NYSCEF 383,
Mehta8 aff ,i 1; NYSCEF 424, 3/11/2019 32 West 20th Street Board’s Letter.) On March
11, 2019, the Building’s Board of Directors notified the Halperins that “[l]ast week we
received a letter from Panasia’s lawyers informing us that Panasia intended to construct
the two-story addition, with the penthouse …. Their construction … necessitates the
elimination of the lot line windows on the east side of the 7th and 8th floors.” (NYSCEF
424, 3/11/2019 Board’s Letter.) The Apartment is located on the eighth floor and hasthree easterly windows. (See NYSCEF 339, Briguet drawings at 3.) Thus, the
Apartment would be affected by Panasia’s construction. This action followed.
(NYSCEF 1, Complaint.)”

“On June 1, 2020, the Halperins filed an amended complaint alleging claims for
negligence and professional malpractice against the HH Defendants (third cause of
action), fraudulent misrepresentation (fourth cause of action), fraudulent concealment
(fifth cause of action), negligent misrepresentation (sixth cause of action), negligence
and professional malpractice (seventh cause of action), gross negligence (eighth cause
of action), and breach of fiduciary duty (ninth cause of action) against the Elliman
Defendants, and negligence and professional malpractice (tenth cause of action)
against Briguet.”

“”An action for legal malpractice requires proof of three elements: ( 1) that the
attorney was negligent; (2) that such negligence was a proximate cause of plaintiff’s
loss; and (3) proof of actual damages.” (Brooks v Lewin, 21 AD3d 731, 734 [1st Dept
2005] [citation omitted], Iv denied 6 NY3d 713 [2006].) The third element requires proof
of “actual and ascertainable” damages that are “clearly calculable.” (Gallet, Dreyer &
Berkey, LLP v Basile, 141 AD3d 405, 406 [1st Dept 2016] [internal quotation marks and
citation omitted].) A plaintiff cannot recover in tort for “for potential harm in the absence of actual injury.” (Niagara Mohawk Power Corp. v Ferranti-Packard Transformers, 201 AD2d 902, 903 [4th Dept 1994], Iv dismissed 83 NY2d 953 [1994].) Indeed, “it is upon injury that a legal right to relief arises in a tort action.” (Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994] [citations omitted].) “The threat of future harm, not yet realized, is not enough.” (/GEN, Inc. v White, 250 AD2d 463,465 [1st Dept 1998] [ citation omitted].)

The HH Defendants have made a prima facie showing of their entitlement to
judgment as a matter of law dismissing the amended complaint by submitting proof that the Halperins sustained no actual damages. In support of their motion, the HH
defendants proffer Jamie’s deposition testimony where she states that the lot-line
windows have not been blocked. (NYSCEF 247, tr. at 170:20-22 [Jamie depo].)
In response, the Halperins fail to raise an issue of fact as they submit no proof
that they sustained actual damages due to losing the lot-line windows. Any damages
that the Halperins may sustain in the future if the lot-line windows are lost are
speculative, and thus, cannot support legal malpractice claim as a matter of law.
(/GEN, Inc., 250 AD2d at 465; see also Gallet, Dreyer & Berkey, LLP, 141 AD3d at 406

[granting summary judgment dismissing a legal malpractice claim “where the asserted
damages are vague, unclear, or speculative” (citation omitted)].) Plaintiffs concede that
they have not lost the lot-line windows. (NYSCEF 438, Response to Rule 19-a
Statement ,i 10; NYSCEF 247, tr. At 170:20-22 [Jamie depo].) The mere fact that
Panasia spent $4 million dollars towards vertical expansion does not support the
Halperins’ claim of actual damages. (See NYSCEF 253, tr. at 39:16-41 :1 [Mehta
depo].)”