Assouline Ritz LLC v. Edward I. Mills & Assocs.

CourtNew York Supreme Court Appellate Division
Writing for the CourtANDRIAS
Citation937 N.Y.S.2d 11,91 A.D.3d 473,2012 N.Y. Slip Op. 00111
Decision Date12 January 2012
PartiesASSOULINE RITZ LLC, et al., Plaintiffs–Respondents, v. EDWARD I. MILLS & ASSOCIATES, ARCHITECTS, PC, et al., Defendants–Appellants.

2012 N.Y. Slip Op. 00111
91 A.D.3d 473
937 N.Y.S.2d 11

ASSOULINE RITZ LLC, et al., Plaintiffs–Respondents,
v.
EDWARD I. MILLS & ASSOCIATES, ARCHITECTS, PC, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

Jan. 12, 2012.


[937 N.Y.S.2d 12]

Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (Larry F. Gainen of counsel), for appellants.

Marin Goodman, LLP, New York (Fredric B. Goodman of counsel), for respondents.

ANDRIAS, J.P., FRIEDMAN, RENWICK, DeGRASSE, ABDUS–SALAAM, JJ.

[91 A.D.3d 473] Order, Supreme Court, New York County (Debra A. James, J.), entered February 22, 2011, which, to the extent appealed from, denied defendants' motion for summary judgment dismissing the cause of action for professional malpractice, unanimously affirmed, with costs.

Plaintiffs retained defendant Edward I. Mills & Associates, Architects, PC (collectively with the two individual defendants, EIM), an architectural firm, as a zoning consultant in connection with their contemplated purchase and improvement of property in Tribeca. In August 2004, plaintiffs entered into an agreement to purchase the five-story building that was then located at 16 Warren Street (16 Warren) for $5 million. Plaintiffs agreed to acquire this property with the intention of conducting a gut renovation, constructing six additional floors, and converting the resulting 11–story building to luxury condominiums for resale. Plaintiffs formulated this plan in reliance on EIM's advice that the applicable zoning laws permitted the addition of six new floors to 16 Warren. According to the principal of one of the two plaintiffs, “[b]ut for [EIM's] assurances that we could add six stories to this building as of right, we would not have entered into a contract to purchase this property.”

After plaintiffs' purchase of 16 Warren closed in December 2004, the New York

[937 N.Y.S.2d 13]

City Department of Buildings objected to the planned renovation on the ground that (as EIM concedes) the City's Zoning Resolution in fact did not permit the addition of six floors to the existing building. After learning of the zoning problem in or about March 2005, plaintiffs sought to purchase the air rights of adjoining properties, which would have enabled them to proceed with the plan. By June 2005, however, it became clear that it would not be possible to purchase the necessary air rights, and plaintiffs decided to go forward with a new plan, consistent with the Zoning Resolution, to demolish the existing five-story building completely and replace it with a new 11–story building.

In 2006, plaintiffs commenced this action against EIM. After discovery, EIM moved for summary judgment dismissing the complaint. For purposes of the motion, EIM did not dispute that an issue existed as to whether it had committed professional [91 A.D.3d 474] malpractice, but argued, inter alia, that the malpractice, if any, had not proximately caused plaintiffs recoverable damages. EIM further argued that, even if there were evidence of damages, plaintiffs' failure to attempt to sell the...

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4 practice notes
  • 544 W. 157th St. Hous. Dev. Fund Corp. v. Alliance Prop. Mgmt. & Dev., Inc., Index No. 104203/2012
    • United States
    • United States State Supreme Court (New York)
    • November 22, 2013
    ...of the Management Agreement or breach of any fiduciary duty. E.g., Assouline Ritzl LLC v. Edward I. Mills & Assoc., Architects, PC, 91 A.D.3d 473, 474 (1st Dep't 2012); LaSalle Bank N.A. v. Nomura Asset Capital Corp., 47 A.D.3d 103, 107-108 (1st Dep't 2007). Plaintiff's failure to retrieve ......
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...by defendants. Rott v. Negev, LLC, 102 A.D.3d 522 (1st Dep't 2013); Assouline Ritzl LLC v. Edward I. Mills & Assoc., Architects, PC, 91 A.D.3d 473, 474 (1st Dep't 2012); Pope v. Saget, 29 A.D.3d 437, 442 (1st Dep't 2006); Cambridge Assoc. v. Town of N. Salem,Page 7282 A.D.2d 702 (2d Dep't 2......
  • Riviera Prop. Holdings, LLC v. Ferber Chan Essner & Coller, LLP, 104953
    • United States
    • United States State Supreme Court (New York)
    • July 31, 2017
    ...or failure to mitigate, which is defendants' burden to establish. Assouline Ritz LLC v. Edward I. Mills & Assoc., Architects, P.C., 91 A.D.3d 473, 474, 937 N.Y.S.2d 11 (1st Dep't 2012) ; Lindenman v. Kreitzer, 7 A.D.3d 30, 35, 775 N.Y.S.2d 4 (1st Dep't 2004). See Corwin v. City of New York,......
  • Hattem v. Smith
    • United States
    • New York Supreme Court Appellate Division
    • April 13, 2017
    ...Community, 57 A.D.2d 1076, 1077, 395 N.Y.S.2d 834 [1977] ; see also Assouline Ritz LLC v. Edward I. Mills & Assoc., Architects, PC, 91 A.D.3d 473, 474–475, 937 N.Y.S.2d 11 [2012] ). Plaintiff's remaining contentions deserve little discussion. His culpable conduct in acquiring JMF's vehicles......
4 cases
  • 544 W. 157th St. Hous. Dev. Fund Corp. v. Alliance Prop. Mgmt. & Dev., Inc., Index No. 104203/2012
    • United States
    • United States State Supreme Court (New York)
    • November 22, 2013
    ...of the Management Agreement or breach of any fiduciary duty. E.g., Assouline Ritzl LLC v. Edward I. Mills & Assoc., Architects, PC, 91 A.D.3d 473, 474 (1st Dep't 2012); LaSalle Bank N.A. v. Nomura Asset Capital Corp., 47 A.D.3d 103, 107-108 (1st Dep't 2007). Plaintiff's failure to retrieve ......
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...by defendants. Rott v. Negev, LLC, 102 A.D.3d 522 (1st Dep't 2013); Assouline Ritzl LLC v. Edward I. Mills & Assoc., Architects, PC, 91 A.D.3d 473, 474 (1st Dep't 2012); Pope v. Saget, 29 A.D.3d 437, 442 (1st Dep't 2006); Cambridge Assoc. v. Town of N. Salem,Page 7282 A.D.2d 702 (2d Dep't 2......
  • Riviera Prop. Holdings, LLC v. Ferber Chan Essner & Coller, LLP, 104953
    • United States
    • United States State Supreme Court (New York)
    • July 31, 2017
    ...or failure to mitigate, which is defendants' burden to establish. Assouline Ritz LLC v. Edward I. Mills & Assoc., Architects, P.C., 91 A.D.3d 473, 474, 937 N.Y.S.2d 11 (1st Dep't 2012) ; Lindenman v. Kreitzer, 7 A.D.3d 30, 35, 775 N.Y.S.2d 4 (1st Dep't 2004). See Corwin v. City of New York,......
  • Hattem v. Smith
    • United States
    • New York Supreme Court Appellate Division
    • April 13, 2017
    ...Community, 57 A.D.2d 1076, 1077, 395 N.Y.S.2d 834 [1977] ; see also Assouline Ritz LLC v. Edward I. Mills & Assoc., Architects, PC, 91 A.D.3d 473, 474–475, 937 N.Y.S.2d 11 [2012] ). Plaintiff's remaining contentions deserve little discussion. His culpable conduct in acquiring JMF's vehicles......

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