In RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023], the court dealt with the issue re strategic decisions taken by the attorney. The court held:
To establish a cause of action for legal malpractice, plaintiff must show that: (1) the attorney was negligent; (2) the attorney’s negligence was a proximate cause of plaintiff’s losses; and (3) plaintiff suffered actual damages (Excelsior Capitol LLC v. K & L Gates LLP, 138 A.D.3d 492, 492, 29 N.Y.S.3d 320 [1st Dept. 2016], lv denied 28 N.Y.3d 906, 2016 WL 6432820 [2016]). Plaintiff must establish that, “but for the attorney’s negligence, plaintiff would have prevailed in the matter in question or would not have sustained any ascertainable damages…. The failure to establish proximate cause mandates the dismissal of a legal malpractice action, regardless of the negligence of the attorney” (Reibman v. Senie, 302 A.D.2d 290, 290–291, 756 N.Y.S.2d 164 [1st Dept. 2003] [internal citations omitted]). Reasonable strategic decisions made by an attorney cannot form the basis of a cause of action for legal malpractice (see Wagner Davis P.C. v. Gargano, 116 A.D.3d 426, 426, 983 N.Y.S.2d 27 [1st Dept. 2014]).
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