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] ). ”

Plaintiff claimed attorney malpracticed with regard to a settlement

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In Freeman v Brecher, 2017 NY Slip Op 07949 [1st Dept Nov. 14, 2017], the plaintiff claimed that the attorney malpracticed with regard to a settlement. In affirming the dismissal of the case, the appellate court held that,

“Plaintiff’s claim for legal malpractice in connection with an underlying settlement fails to state a cause of action in the absence of allegations that the “settlement … was effectively compelled by the mistakes of [defendant] counsel” (Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487 [1st Dept.1990] ) or the result of fraud or coercion (see Beattie v. Brown & Wood, 243 A.D.2d 395, 663 N.Y.S.2d 199 [1st Dept.1997] ). Plaintiff’s equivocal denial of knowledge of the terms of the settlement is flatly contradicted by the clear terms of the settlement agreement (see Bishop v. Maurer, 33 A.D.3d 497, 499, 823 N.Y.S.2d 366 [1st Dept.2006], affd. 9 N.Y.3d 910, 844 N.Y.S.2d 165, 875 N.E.2d 883 [2007] ). Additionally, plaintiff’s speculative and conclusory allegations of proximately caused damages cannot serve as a basis for a legal malpractice claim (see Pellegrino v. File, 291 A.D.2d 60, 63, 738 N.Y.S.2d 320 [1st Dept.2002], lv. denied 98 N.Y.2d 606, 746 N.Y.S.2d 456, 774 N.E.2d 221 [2002] ). Plaintiff’s cause of action for breach of fiduciary duty arising from the same conduct was correctly dismissed as duplicative of the legal malpractice claim (see Garnett v. Fox, Horan & Camerini, LLP, 82 A.D.3d 435, 436, 918 N.Y.S.2d 79 [1st Dept.2011]; InKine Pharm. Co. v. Coleman, 305 A.D.2d 151, 152, 759 N.Y.S.2d 62 [1st Dept.2003] ).”

If attorney regularly invoices client and client doesn’t object, then court assumes “ account stated. ”

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When an attorney has billed a client for legal services rendered, the attorney will presumably send the client bill at regular intervals. If the attorney does regularly invoice the client and the client doesn’t object, then the court can assume there is an “account stated.” This is what occurred in Glassman v Weinberg, 154 AD3d 407 [1st Dept 2017], where the court held:

Plaintiff made a prima facie showing of his entitlement to summary judgment on his account stated claim by providing documentary evidence of the invoices, and an affidavit stating that he sent the invoices on a monthly basis to defendant, and that defendant received the invoices and failed to object to the invoices until this litigation (see L.E.K. Consulting LLC v. Menlo Capital Group, LLC, 148 A.D.3d 527, 528, 52 N.Y.S.3d 1 [1st Dept.2017]; Morrison Cohen Singer & Weinstein, LLP v. Waters, 13 A.D.3d 51, 52, 786 N.Y.S.2d 155 [1st Dept.2004] ).

R. A. Klass
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Client claims settlement was not in his interest.

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Sometimes, a client will bring a legal malpractice claim against his attorney after the underlying case has been settled. The client may claim that the settlement was not in his interest.

A legal malpractice cause of action “ ‘is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel’ ” (Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C., 21 A.D.3d 1082, 1083, 803 N.Y.S.2d 571, quoting Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487). Nonetheless, a plaintiff’s conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in a better position but for the settlement, without more, do not make out a legal malpractice cause of action (see Benishai v. Epstein, 116 A.D.3d at 727, 983 N.Y.S.2d 618 ; Boone v. Bender, 74 A.D.3d 1111, 1113, 904 N.Y.S.2d 467; Holschauer v. Fisher, 5 A.D.3d 553, 554, 772 N.Y.S.2d 836).

Maroulis v Friedman, 153 AD3d 1250 [2d Dept 2017]

R. A. Klass
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For dismissal of action, attorney must definitively lay out the defense to every element of the cause of action.

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When an attorney being sued for legal malpractice seeks the dismissal of the action, the attorney must ensure that the motion papers definitively lay out the defense to every element of the client’s cause of action. In Burbige v Siben & Ferber, 152 AD3d 641 [2d Dept 2017], the court denied the motion brought by the law firm, holding:…

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Here, contrary to the Supreme Court’s determination, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint. The defendants’ submissions in support of their motion for summary judgment did not establish, prima facie, that the plaintiff will be unable to prove at least one element of his legal malpractice claim (see Kempf v. Magida, 116 A.D.3d 736, 736, 982 N.Y.S.2d 916; Barnave v. Davis, 108 A.D.3d 582, 969 N.Y.S.2d 139; Alizio v. Feldman, 82 A.D.3d 804, 918 N.Y.S.2d 218). Furthermore, the defendants failed to establish, prima facie, that the plaintiff did not sustain “actual and ascertainable damages” as a result of the defendants’ alleged neglect of the underlying action (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; see Suydam v. O’Neill, 276 A.D.2d at 550, 714 N.Y.S.2d 686).

R. A. Klass
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