Port Jefferson Properties, Ltd. v. Sapperstein, Hochberg & Haberman, Inc.

—In an action to recover damages for breach of contract and malpractice, the defendants appeal from so much of an order of the Supreme Court, Nassau County (Ain, J.), dated January 25, 1993, as denied that branch of their motion which was for summary judgment on the issue of damages relating to "replacement costs” and "fees”.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellants’ contentions, the Supreme Court properly determined that they are not entitled to summary judgment on the plaintiff’s claim dealing with replacement costs and return of fees. We note that triable issues of fact exist as to whether or not the appellants properly advised the plaintiff concerning its claim to recover replacement costs under its fire insurance policy. Specifically, we note that questions of fact exist as to whether the appellants properly advised the plaintiff that it could recover the "replacement cost” funds under the insurance policy more than two years after the fire occurred.

Additionally, in light of the plaintiffs claim that it was improperly advised on the recovery of the "replacement cost” proceeds, it would be inappropriate to dismiss the plaintiff’s claim for recovery of the fees they paid the appellants. Sullivan, J. P., Balletta, Joy and Altman, JJ., concur.