Global Bus. Inst. v Rivkin Radler, LLP ;2012 NY Slip Op 31057(U); April 16, 2012; Supreme Court, New York County ;Docket Number: 104918/06 ;Judge: Doris Ling-Cohan is a textbook decision on when and how summary judgment is applied in Legal Malpractice.  Case is simple.  Plaintiff hired Rivkin Radler to negotiate a real estate lease.  There was a long delay before plaintiff could take possession, and during that time the RE taxes escalated.  Plaintiff argued that the lease should have limited the start of the escalation period to when plaintiff got possession.  It did not.  May RR get summary judgment?

"Rivkin Radler next argues that both Global’s “substantial completion/lost profit/consequential damages claims and tax escalation claims are substantively insufficient as a matter of law,” and should be dismissed on that ground. See Defendant’s Memorandum of Law, at 5-17. Global responds that there are issues of fact as to each element of its claims that preclude summary judgment and dismissal at this juncture. See Plaintiffs Memorandum of Law, at 15-23. After careful consideration, the court finds for Global.

In Leder v Spiegel(31 AD3d 246,267 [ 1” Dept 2006 the Appellate Division, First Department, noted that “[in order to state a cause of action for legal malpractice, the complaint must set forth three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages.” Further, with respect to the element of proximate cause, the First Department noted in Fletcher v Boies, Schiller h Flexner, LLP (75 AD3d 469,469 [1st Dept 2010) that a plaintiff must demonstrate that “but for defendants’ malpractice in failing to advise her properly, she ‘would have avoided some actual ascertainable damage,’ including sufficient detail as to the ‘nature of the underlying claim .

Rivkin Radler next argues that the element of attorney negligence was not present with respect to those claims because it did not depart “from generally accepted standards of practice” during the negotiation of the lease. See Defendant’s Memorandum of Law, at 8-9. Rivkin Radler supports this argument with an affidavit from one Lloyd Shor (Shor), who is described as a “commercial leasing expert.” See Shor Reply Affidavit, f 10. Global replies that Rivkin Radler did breach its duties to Global by departing from generally accepted standards of lease negotiating practice, and has presented affidavits from “damages expert” Morton Cohen (Cohen) and attorney Martin Stein (Stein) to support its allegations. See Plaintiff‘s Memorandum of Law, at 16-1 7; Cohen and Stein Affidavits in Opposition. Without delving into the merits at this juncture, the court merely concludes that the competing experts affidavits indicate the existence of an issue of fact as to whether Rivkin Radler was negligent during the lease negotiations, and that that issue precludes any grant of summary judgment. Therefore, for the purposes of this motion, the court rejects Rivkin Radler’s claim of no negligence.

Finally, with respect to Global’s substantial completion/lost profit/consequential damages claims, Rivkin Radler argues that the damages element is insufficient because it is based on speculation. See Defendant’s Memorandum of Law, at 9- 1 1. Global responds that either lost profits or  consequential damages are capable of being measured via formulae discussed by its experts in their affidavits. See Plaintiffs Memorandum of Law, at 2 1-23. “The damages claimed in a legal malpractice action must be ‘actual and ascertainable’ resulting from the proximate cause of the attorney’s negligence [internal citation omitted].” Zarin v Reid & Priest, 184 AD2d 385,387-388 (1“ Dept 1992). The court agrees that lost profits and consequential damages as a result of an almost four-year delay in being able to enter the lease premises are the sorts of damages that are susceptible of calculation. "