In Casey v Exum, 2023 NY Slip Op 04106 [2d Dept Aug. 2, 2023], the court held that a client’s malpractice action was dismissed based on speculation, holding:
A plaintiff in an action alleging legal malpractice must prove the defendant attorney’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Sang Seok NA v. Schietroma, 163 A.D.3d 597, 598, 79 N.Y.S.3d 636). “A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages” (Provenzano v. Cellino & Barnes, P.C., 207 A.D.3d 763, 764, 170 N.Y.S.3d 910 [internal quotation marks omitted]; see Bakcheva v. Law Offs. of Stein & Assoc., 169 A.D.3d 624, 625, 93 N.Y.S.3d 388). If the defendant meets that burden, the burden shifts to the plaintiff to raise a triable issue of fact. To establish proximate causation, the plaintiff must show that she would have prevailed in the underlying action or would not have incurred any damages, but for the defendant attorney’s negligence (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Schiller v. Bender, Burrows & Rosenthal, LLP, 116 A.D.3d 756, 757, 983 N.Y.S.2d 594). “ ‘Mere speculation about a loss resulting from an attorney’s alleged omission is insufficient to sustain a prima facie case of legal malpractice’ ” (Alaimo v. Mongelli, 93 A.D.3d 742, 743, 940 N.Y.S.2d 669, quoting Humbert v. Allen, 89 A.D.3d 804, 806, 932 N.Y.S.2d 155).
Here, the defendant established, prima facie, that he was not a proximate cause of the plaintiff’s alleged damages (see Richmond Holdings, LLC v. David S. Frankel, P.C., 150 A.D.3d 1168, 1168, 52 N.Y.S.3d 672; Montero v. Cohen, 104 A.D.3d 654, 655, 960 N.Y.S.2d 468). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s claims that the defendant could have negotiated a more favorable settlement, that her former spouse would have accepted a settlement offer that was more favorable to her, or that she would have received a more favorable outcome at trial had she declined to enter into the settlement are conclusory and speculative (see Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d 1504, 1506, 131 N.Y.S.3d 89; Janker v. Silver, Forrester & Lesser, P.C., 135 A.D.3d 908, 910, 24 N.Y.S.3d 182).
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.
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