J. Maurice Herman, et al., appellants,
Franke, Gottsegen, Cox Architects, et al., respondents.
Akerman LLP, New York, NY (M. Darren Traub and Matthew R.
DiBlasi of counsel), for appellants.
& O'Neill, LLP, New York, NY (Elaine C. Gangel and
Navid Ansari of counsel), for respondents.
M. LEVENTHAL, J.P. BETSY BARROS VALERIE BRATHWAITE NELSON
LINDA CHRISTOPHER, JJ.
DECISION & ORDER
from an order of the Supreme Court, Kings County (Lawrence
Knipel, J.), dated June 26, 2015. The order, insofar as
appealed from, granted the defendants' motion for summary
judgment dismissing the complaint and denied the
plaintiffs' cross motion for summary judgment.
that the order is affirmed insofar as appealed from, with
plaintiffs, J. Maurice Herman and Windsor Plaza, LLC
(hereinafter Windsor), commenced this action to recover
damages for professional malpractice and breach of contract.
They alleged in the complaint that Windsor owned a building
located at 952 Fifth Avenue in Manhattan, and Herman owned
the unused development rights associated with the building.
In 2003, they retained the defendants, the architectural firm
Franke, Gottsegen, Cox Architects (hereinafter FGCA), Erika
N. Frank, and Norman R. Cox, to determine the maximum extent
to which the building could be enlarged under the applicable
codes and regulations. The defendants reported that the
building could be enlarged to add an additional 22, 161
plaintiffs alleged that, based on that report, they decided
to enlarge the building by only 12, 161 square feet, and to
donate a restrictive covenant on the unused 10, 000 square
feet to the National Architectural Trust (hereinafter the
NAT). Herman took a tax deduction on his 2003 personal income
tax return for the value of the 10, 000 square feet. The
Internal Revenue Service (hereinafter the IRS) disallowed the
deduction, resulting in years of litigation before the United
States Tax Court, which ultimately ruled in favor of the IRS.
plaintiffs then commenced this action, alleging that,
pursuant to the Multiple Dwelling Law, the maximum
permissible enlargement of the building was only
approximately 12, 000 square feet, not 22, 161 square feet,
and that if the defendants had accurately calculated the
extent to which the building could be expanded, Herman would
not have attempted to donate the unused 10, 000 square feet
to the NAT and taken a deduction for the donation. The
defendants moved for summary judgment dismissing the
complaint, and submitted an affidavit from Cox, a licensed
architect, who affirmed, with a reasonable degree of
architectural certainty, that the defendants'
determination that the building could be enlarged to add an
additional 22, 161 square feet was correct. The plaintiffs
opposed the motion and cross-moved for summary judgment,
submitting only an affidavit from Herman. The Supreme Court
granted the motion and denied the cross motion, and the
of professional malpractice requires proof that there was a
departure from the accepted standards of practice and that
the departure was a proximate cause of the injury (see
Bruno v Trus Joist a Weyerhaeuser Bus., 87 A.D.3d 670,
672; Kung v Zheng, 73 A.D.3d 862, 863; Estate of
Burke v Repetti & Co., 255 A.D.2d 483). It is
incumbent upon the plaintiff to present expert testimony to
support allegations of malpractice (see 530 E. 89 Corp. v
Unger, 43 N.Y.2d 776, 777; McDermott v Manhattan
Eye, Ear & Throat Hosp., 15 N.Y.2d 20, 24), except
where the alleged act of malpractice falls within the
competence of a lay jury to evaluate (see 530 E. 89 Corp.
v Unger, 43 N.Y.2d at 777; Hammer v Rosen, 7
N.Y.2d 376, 380).
the Supreme Court correctly concluded that the determination
of the maximum enlargement of the building permissible under
New York law was the type of determination that required
specialized knowledge, and thus, that expert evidence
testimony was required to determine whether the defendants
exercised due care in making that determination (see 530
E. 89 Corp. v Unger, 43 N.Y.2d at 777; Michael v He
Gin Lee Architect Planner, PLLC, 153 A.D.3d 704). The
defendants established their prima facie entitlement to
judgment as a matter of law dismissing the complaint by
submitting, inter alia, the affidavit from Cox, a licensed
architect. As the plaintiffs failed to offer an affidavit
from an expert, they failed to establish their entitlement to
judgment as a matter of law and failed to raise a triable
issue of fact to rebut the defendants' prima facie
plaintiffs' remaining contentions are without merit.
the Supreme Court properly granted the defendants' motion
for summary judgment dismissing the complaint, and denied the