Global Bus. Inst. v Rivkin Radler LLP   2012 NY Slip Op 09180   Decided on December 27, 2012
Appellate Division, First Department  is the exception to the rule, where Supreme Court declines to dismiss and the AD reverses. The AD’s reasoning is fairly clear.  They hold that Plaintiff cannot prove that the poor commercial outcome is the attorney’s fault.  Rather, it was plaintiff who agreed to the terms of the commercial deal, so…

"In this action for legal malpractice, defendant met its burden on summary judgment of "showing an absence of proximate cause" between the alleged negligence and plaintiff’s losses (Levine v Lacher & Lovell-Taylor, 256 AD2d 147, 151 [1st Dept 1998]). The documentary evidence establishes that plaintiff, and defendant, the firm that represented plaintiff in the negotiation and drafting of the lease, requested that the landlord agree to utilizing a later base year than 2004/05 for real estate tax escalation and the landlord refused. The documentary evidence also establishes that plaintiff knowingly accepted the landlord’s terms on this issue. In addition, defendant demonstrated that the landlord would not have agreed to an additional penalty beyond deferment of rent for late completion of the construction required for plaintiff to use the premises for its business.

Plaintiff failed "to demonstrate a material issue of fact on the question of proximate cause" (Levine, 256 AD2d at 151). Notably, neither of plaintiff’s experts contradicted defendant’s expert’s testimony that, at the time the subject lease was being negotiated, the real estate market strongly favored landlords. [*2]

Plaintiff’s claim that it would have pursued alternative space is speculative and therefore insufficient to establish that defendant’s malpractice, if any, was a proximate cause of plaintiff’s loss (see Brooks, 21 AD3d at 734-735). "