Summary
granting summary judgment in favor of attorney on malpractice claim because the damages claimed by the plaintiff were "too speculative and incapable of being proven with any reasonable certainty"
Summary of this case from Tokio Marine & Nichido Fire Ins. Co. v. CalabreseOpinion
December 17, 1990
Appeal from the Supreme Court, Westchester County (Ruskin, J.).
Ordered that the order is affirmed, with costs.
In this legal malpractice action, the plaintiff claims that the negligence of the defendants in representing him concerning a real estate contract caused him to lose anticipated profits. He claims that because of the defendants' negligence he was not able to enforce his contract for the purchase of certain property which he planned to subdivide in order to realize a profit. However, we agree with the defendants' argument that this claim is too speculative and incapable of being proven with any reasonable certainty (see, Kenford Co. v. County of Erie, 67 N.Y.2d 257). The plaintiff had no experience in real estate development, and his financing was questionable. Furthermore, there is no evidence that he would have been able to obtain permission to subdivide the property into a sufficient number of building lots to make subdivision profitable. Thus, the court properly granted partial summary judgment on the lost profits cause of action, since, as a matter of law, it was too speculative to support a recovery (see, Grow Tunneling Corp. v. Consolidated Edison Co., 157 A.D.2d 452; Hirsch Elec. Co. v. Community Servs., 145 A.D.2d 603).
Further, the granting of partial summary judgment was proper, since the plaintiff did not adequately oppose the motion with the expert evidence which the issues warranted (see, Zuckerman v. City of New York, 49 N.Y.2d 557; Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338; Kratter v. Weintraub, 97 A.D.2d 491). Kooper, J.P., Eiber, Sullivan and Balletta, JJ., concur.