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DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant attorneys failed to demonstrate plaintiffs suffered no damages in this legal malpractice action. Plaintiffs alleged defendants delayed in evicting plaintiffs’ tenants resulting in $500,000 in lost rent. Defendants, in their motion for summary judgment, alleged only that plaintiffs’ damages were speculative, which merely pointed to gaps in plaintiffs’ proof and is never enough for an award of summary judgment:

The defendants failed to submit evidence establishing, prima facie, that the plaintiffs are unable to prove at least one essential element of the cause of action alleging legal malpractice … . The defendants’ styling of the plaintiffs’ damages theory as “speculative” was merely an effort to point out gaps in the plaintiff’s proof, which was insufficient to meet the defendants’ burden as the party moving for summary judgment … .

Moreover, even if the plaintiffs’ damages cannot be precisely calculated at this stage, expenses to the client resulting from attorney delays are deemed to be ascertainable damages in connection with a legal malpractice cause of action … . Iannucci v Kucker & Bruh, LLP, 2018 NY Slip Op 03514, Second Dept 5-16-18

​ATTORNEYS (MALPRACTICE, DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))/LEGAL MALPRACTICE (DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))/EVIDENCE (SUMMARY JUDGMENT, MALPRACTICE, DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))/SUMMARY JUDGMENT (EVIDENCE, LEGAL MALPRACTICE,  DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT))

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QUESTIONS OF FACT WHETHER THE WORK ON A BOILER WAS ROUTINE MAINTENANCE (NOT COVERED BY LABOR LAW 240 (1)) AND WHETHER A SAFETY DEVICE WAS REQUIRED, CONTRACTOR’S DEFAULT CONSTITUTED AN ADMISSION TO THE ALLEGATIONS IN THE COMPLAINT, INCLUDING THAT PLAINTIFF SUFFERED A GRAVE INJURY (TAKING THE INJURY OUT FROM UNDER THE WORKERS’ COMPENSATION LAW) (SECOND DEPT).
THE BURGLARY COUNT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT ALLEGED DEFENDANT WAS ARMED WITH A “KNIFE” WHICH IS NOT NECESSARILY A “DEADLY WEAPON;” THE ATTEMPT TO AMEND THE COUNT WAS NOT AUTHORIZED; THE SANDOVAL RULING WAS (HARMLESS) ERROR (SECOND DEPT).
No Ambiguity in Contract; No Resort to Extrinsic Evidence
Law Office Failure Justified Vacation of Default Judgment
HERE THE LIQUIDATED DAMAGES CLAUSE WAS DEEMED AN UNENFORCEABLE PENALTY BECAUSE THERE WAS NO RELATONSHIP BETWEEN THE AMOUNT OF THE LIQUIDATED DAMAGES AND THE ACTUAL DAMAGES (SECOND DEPT). ​
THE STIPULATION SETTING A DATE FOR THE CLOSING ON DEFENDANT’S PURCHASE OF THE PROPERTY DID NOT INFORM DEFENDANT HE WOULD BE CONSIDERED TO BE IN DEFAULT IF THE CLOSING DID NOT TAKE PLACE BY THAT DATE; THEREFORE THERE WAS NO “TIME OF THE ESSENCE” AGREEMENT AND PLAINTIFF WAS NOT ENTITLED TO THE DOWN PAYMENT (SECOND DEPT).
PARTY FACING POSSIBLE INCARCERATION IN SUPPORT PROCEEDINGS IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL, FATHER HERE DID NOT RECEIVE MEANINGFUL REPRESENTATION.
EVEN IF ANIMAL SHELTER FAILED TO INFORM PLAINTIFF OF THE DOG’S VICIOUS PROPENSITIES, THAT FAILURE WAS NOT THE PROXIMATE CAUSE OF THE DOG BITE; PLAINTIFF HAD AMPLE OPPORTUNITY TO OBSERVE THE VICIOUS PROPENSITIES PRIOR TO THE BITE.

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THE MEANING OF ‘SUBSTANTIAL EVIDENCE’ SUFFICIENT TO SUPPORT A DETERMINATION... MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED...