Cite as: Global Business Institute v. Rivkin Radler LLP, 104918/06, NYLJ 1202583843264, at *1 (App. Div., 1st, Decided December 27, 2012)

Before: Mazzarelli, J.P., Moskowitz, Degrasse, Manzanet-Daniels, Clark, JJ.

Decided: December 27, 2012

ATTORNEYS

For Appellant: Evan H. Krinick of Counsel, Rivkin Radler LLP, Uniondale

For Respondent: Martin Stein of Counsel, Heller, Horowitz & Feit, P.C., New York.

 

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Order, Supreme Court, New York County (Doris Ling — Cohan, J.), entered April 19, 2012, which denied defendant's motion for partial summary judgment dismissing plaintiff's claims for tax escalation damages and substantial completion/lost profits damages, unanimously reversed, on the law, without costs, and the motion granted.

"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 losses; and (3) proof of actual damages" (Brooks v. Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). "[T]he failure to show proximate cause mandates dismissal of a legal malpractice action regardless of whether the attorney was negligent" (Wo Yee Hing Realty Corp. v. Stern, 99 AD3d 58, 63 [1st Dept 2012] [internal quotation marks omitted]).

In this action for legal malpractice, defendant met its burden on summary judgment of "showing an absence of proximate cause" between the alleged negligence and plaintiff's losses (Levine v. Lacher & Lovell — Taylor, 256 AD2d 147, 151 [1st Dept 1998]). The documentary evidence establishes that plaintiff, and defendant, the firm that represented plaintiff in the negotiation and drafting of the lease, requested that the landlord agree to utilizing a later base year than 2004/05 for real estate tax escalation and the landlord refused. The documentary evidence also establishes that plaintiff knowingly accepted the landlord's terms on this issue. In addition, defendant demonstrated that the landlord would not have agreed to an additional penalty beyond deferment of rent for late completion of the construction required for plaintiff to use the premises

 

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for its business.

Plaintiff failed "to demonstrate a material issue of fact on the question of proximate cause" (Levine, 256 AD2d at 151). Notably, neither of plaintiff's experts contradicted defendant's expert's testimony that, at the time the subject lease was being negotiated, the real estate market strongly favored landlords.

Plaintiff's claim that it would have pursued alternative space is speculative and therefore insufficient to establish that defendant's malpractice, if any, was a proximate cause of plaintiff's loss (see Brooks, 21 AD3d at 734-735).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.