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Hotaling v Sprock, 107 A.D. 3d 1446 (4 Dept. 6/7/2013)

Hotaling v Sprock, 107 A.D. 3d 1446 (4 Dept. 6/7/2013)

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Published by Leonard E Sienko Jr
Plaintiffs brought a legal malpractice action against their lawyers for failing to determine that the town zoning ordinance prohibited them from operating an adult use business in the building they bought for that purpose. The appellate court reversed the trial court’s dismissal because the client had raised an issue of fact as to whether he had sustained damages for loss of rent.
Plaintiffs brought a legal malpractice action against their lawyers for failing to determine that the town zoning ordinance prohibited them from operating an adult use business in the building they bought for that purpose. The appellate court reversed the trial court’s dismissal because the client had raised an issue of fact as to whether he had sustained damages for loss of rent.

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Categories:Types, Business/Law
Published by: Leonard E Sienko Jr on Aug 04, 2013
Copyright:Attribution Non-commercial

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08/12/2013

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SUPREME COURT OF THE STATE OF NEW YORK
 Appellate Division, Fourth Judicial Department
533CA 12-01222
PRESENT: SCUDDER, P.J., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.RICHARD HOTALING, PLAINTIFF-APPELLANT,VMEMORANDUMAND ORDER CHARLES M. SPROCK, ESQ., ROBERT F.BALDWIN, JR., ESQ., JAMIE L. SUTPHEN, ESQ.AND BALDWIN & SUTPHEN, LLP,DEFENDANTS-RESPONDENTS.(APPEAL NO. 2.)COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (NICOLE MARLOW-JONES OFCOUNSEL), FOR PLAINTIFF-APPELLANT.SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (LAURENCE F. SOVIK OFCOUNSEL), FOR DEFENDANTS-RESPONDENTS.Appeal froma judgment of the Supreme Court, Onondaga County (JamesP. Murphy, J.), entered September 26, 2011. The judgment awarded costsand disbursements to defendants.It is hereby ORDERED that the judgment so appealed fromisunanimously modified on the law by denying the motion in part, and thethird amended complaint, as amplified by plaintiffs response todefendants’ interrogatories, is reinstated to the extent that it seeksdamages for loss of rent based on legal malpractice and as modified the judgment is affirmed without costs.Memorandum: Plaintiff commenced this legal malpractice actionseeking damages for the alleged negligence of defendants in failing todetermine that a Town of Dewitt zoning ordinance prohibited himfromoperating an “adult use” business in the building he purchased for thatpurpose. Zonen, Ltd. (Zonen), the corporation formed by plaintiff tooperate the business, has operated a retail establishment in thebuilding, which includes “adult useinventory, since 2001. SupremeCourt granted defendants’ motion for summary judgment dismissing thethird amended complaint on the ground that plaintiff failed to raise anissue of fact whether he sustained actual and ascertainable damages, an“ ‘essential element[] of [a] legal malpractice cause of action(
Malachowski v Daly 
,
 
87 AD3d 1321, 1321;
see generally Dombrowski v Bulson
,
 
19 NY3d 347, 350).As a preliminary matter, we reject plaintiffs contention that heshould be permitted to recover damages for personal funds that he allegedwere expended through the corporate account on a theory of reverse-

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