Evidence rebutted the malpractice claim

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…The court found that evidence rebutted the malpractice claim….

In an action brought by a former client against his attorneys, the court determined that the complaint failed to state a cause of action. The court found that evidence rebutted the malpractice claim. The court held,

“The conclusory allegation that, but for defendants‘ negligence, plaintiff would have successfully opposed the summary judgment motion in the foreclosure action and defended the action is insufficient to support the legal malpractice claim, because the evidentiary material reveals that plaintiff had no viable defense (see West 45th St. Venture LLC v. Ladera Partners, LLC, 2012 N.Y. Slip Op. 31834[U], 2012 WL 2951192, *7–8 [Sup. Ct. N.Y. County 2012], affd 106 A.D.3d 412, 963 N.Y.S.2d 864 [1st Dept. 2013], lv denied 22 N.Y.3d 859, 981 N.Y.S.2d 370, 4 N.E.3d 382 [2014] ).” Ladera Partners, LLC v Goldberg, Scudieri & Lindenberg, P.C., 157 AD3d 467, 467 [1st Dept 2018]

R. A. Klass
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Underlying claim based upon speculation and could not be sustained

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…claim based upon speculation…

In an action brought by a former client against his attorneys, the court determined that the complaint failed to state a cause of action. The court found that, while the complaint could be amended, the underlying claim was based upon speculation and could not be sustained. The court held,

“ Nevertheless, the amended complaint must be dismissed, because plaintiff’s claim that, but for defendants’ negligence, he would have recovered the full $3 million that he was owed during the bankruptcy filed by nonparty Majestic Capital, Ltd., consists of “ gross speculations on future events ” (Sherwood Group v. Dornbush, Mensch, Mandelstam & Silverman, 191 A.D.2d 292, 294, 594 N.Y.S.2d 766 [1st Dept. 1993]; see also Heritage Partners, LLC v. Stroock & Stroock & Lavan LLP, 133 A.D.3d 428, 19 N.Y.S.3d 511 [1st Dept. 2015], lv denied 27 N.Y.3d 904, 36 N.Y.S.3d 616, 56 N.E.3d 896 [2016]; Turk v. Angel, 293 A.D.2d 284, 740 N.Y.S.2d 50 [1st Dept. 2002], lv denied 100 N.Y.2d 510, 766 N.Y.S.2d 164, 798 N.E.2d 348 [2003] ).” Hickey v Kaufman, 156 AD3d 436 [1st Dept 2017].

R. A. Klass
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Dismissal of a legal malpractice action based upon documentary evidence

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Where a defendant/law firm moves for dismissal of a legal malpractice action based upon documentary evidence, it must establish that the documents are a complete defense to the other action; otherwise, the motion will be denied and the action will be permitted to go forward.

The court stated in, Hershco v Gordon & Gordon, 155 AD3d 1007 [2d Dept 2017], “A motion to dismiss on the basis of CPLR 3211(a)(1) may be granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see 413 Throop, LLC v. Triumph, the Church of the New Age, 153 A.D.3d 1306, 1307, 61 N.Y.S.3d 307). On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept the facts alleged in the complaint as true and afford the proponent the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see *39 Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 A.D.3d 122, 125, 884 N.Y.S.2d 94, affd 16 N.Y.3d 775, 919 N.Y.S.2d 496, 944 N.E.2d 1135).”

Definitions: plaintiff, defendant.

R. A. Klass
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Alleged damages must be alleged with certainty

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” …court emphasized that it isn’t enough to just allege damages, they must be alleged with certainty… “

In Heritage Partners LLC v Stroock & Stroock & Lavan LLP, 155 AD3d 561 [1st Dept 2017], the appellate court emphasized that it isn’t enough to just allege damages, they must be alleged with certainty and not based on speculation. The court stated:

Even if our decision in a prior action between the parties (Heritage Partners, LLC v. Stroock & Stroock & Lavan LLP, 133 A.D.3d 428, 19 N.Y.S.3d 511 [1st Dept.2015], lv. denied 27 N.Y.3d 904, 2016 WL 1692057 [2016] ) does not constitute res judicata barring the instant action (a question we need not address), the new complaint fails to state a cause of action for malpractice because it does not sufficiently allege that defendant’s negligence was the proximate cause of plaintiff’s damages. While the current complaint addresses many of the problems we noted in the prior appeal, it does not adequately address the difficulty of “obtain[ing] debtor-in-possession financing in a troubled economic climate” (Heritage Partners, LLC v. Stroock & Stroock & Lavan LLP, 133 A.D.3d at 429, 19 N.Y.S.3d 511). Plaintiffs allege that “any funding required to facilitate a bankruptcy plan would have been secured through the bankruptcy court’s issuance of a ‘superpriority lien’…. Plaintiffs’ over $71 million in equity cushion was more than sufficient to secure approval from a bankruptcy court for a superpriority lien for DIP Financing.” However, as defendants contend, it is conjecture that there would have a been a DIP lender *198 willing to finance plaintiffs’ reorganization even if the bankruptcy court gave it superpriority. Unlike In re Lake Michigan Beach Pottawattamie Resort LLC, 547 B.R. 899 (Bankr.N.D.Ill.2016), this is not a case where “the Debtor … offered to provide evidence … of lenders willing to refinance the Property and pay [the existing lender] in full” (id. at 908). Thus, like the allegations in the prior complaint, the allegations in the current complaint are “couched in terms of gross speculations on future events and point to the speculative nature of plaintiffs’ claim” (Heritage, 133 A.D.3d at 429, 19 N.Y.S.3d 511 [internal quotation marks omitted] ).

R. A. Klass
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Plaintiff must establish elements of proximate cause

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In Verdi v Jacoby & Meyers, LLP, 154 AD3d 901 [2d Dept 2017], the court held:

“ To establish a cause of action to recover damages for legal malpractice, a plaintiff must establish the elements of proximate cause and damages, i.e. “ a plaintiff must show that but for the attorney’s negligence, he or she would have prevailed on the underlying claim ” (Rau v. Borenkoff, 262 A.D.2d 388, 389, 691 N.Y.S.2d 140; see Di Giacomo v. Michael S. Langella, P.C., 119 A.D.3d 636, 638, 990 N.Y.S.2d 221), by proving “ a case within a case ” (McKenna v. Forsyth & Forsyth, 280 A.D.2d 79, 82, 720 N.Y.S.2d 654 [internal quotation marks omitted] ). ”