Cohen v. Berkowitz , 733 N.Y.S.2d 351 ( 2001 )

—Order, Supreme Court, New York County (Marylin Diamond, J.), entered June 25, 2001, which denied defendants’ motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs.

The complaint sufficiently alleges that but for defendants’ malpractice in preparing a defective notice of non-renewal to one of the tenants in the townhouse that plaintiffs purchased, plaintiffs would have prevailed in the eviction proceeding they brought against the tenant (ef., Berkeley Assocs. Co. v Camlakides, 173 AD2d 193, affd 78 NY2d 1098). Whether the tenant had defenses to the eviction proceeding other than the alleged defective notice is a question to be raised by defendants and explored after issue is joined. The damages alleged — either (1) the cost of finding the tenant, who turned 62 years old during the term of the renewal lease, comparable housing or otherwise inducing her to vacate her apartment, or (2) the difference between the fair market value of the townhouse with the tenant in it and its fair market value were she not in it— are ascertainable through expert testimony and otherwise, and are not speculative. Whether plaintiffs are entitled to the particular damages they seek is a question that also should be explored after joinder of issue. Concur — Mazzarelli, J. P., Andrias, Buckley and Marlow, JJ.