Plaintiff Developer hired defendant architect for advice, among other things, regarding the zoning requirements and restrictions on a certain property in Manhattan. The architect advised that the developer would be permitted to gut the existing five story building, add six more floors and end up with an eleven story building to convert to condominiums. Developer purchased the five story building for $5 million, but learned that the addition of six floors was not permitted. Developer could and did get its eleven floor building by demolishing the existing building and building an entirely new eleven story building. Developer sued architect on a theory of professional malpractice, seeking as damages the cost to demolish and rebuild the building. Architect moved for summary judgment, arguing that developer's failure to sell the building was a failure to mitigate damages. In affirming the denial of the architect's motion for summary judgment, the Appellate Division held that the failure to mitigate did not bar recovery. It merely will reduce the amount of recovery. The plaintiff developer will be entitled to recover the expenses which are proven to have been actually spent in direct reliance on the negligent advice as to zoning by the architect. But that recovery will be reduced insofar as the architect can prove a failure to take reasonable steps to mitigate damages, and the amount that such mitigation efforts would have diminished the loss.
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