As we discussed yesterday, courts are eager to dismiss legal malpractice cases, early in the case or late, on the question of whether Client can show that "but for" the attorney’s negligence there would have been a better economic outcome for the client. Mackey Reed Elec., Inc. v Morrone & Assoc., P.C. 2015 NY Slip Op 01426 Decided on February 18, 2015 Appellate Division, Second Department is an example. Read the decision as closely as you wish, but there is not a scintilla of explanation of why client could not show the "but for" causation.
"Here, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice. Accepting as true the facts alleged in the complaint, and according the plaintiffs the benefit of every favorable inference (see Leon v Martinez, 84 NY2d at 87-88), it fails to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome in the underlying proceedings or that the plaintiffs would not have incurred any damages (see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083; Holschauer v Fisher, 5 AD3d 553). Accordingly, the complaint fails to state a cause of action to recover damages for legal [*2]malpractice.
In addition, the causes of action alleging breach of fiduciary duty and fraud are duplicative of the legal malpractice cause of action, since they arise from the same facts as those underlying the legal malpractice cause of action, and do not allege distinct damages (see Biberaj v Acocella, 120 AD3d 1285, 1287; Palmieri v Biggiani, 108 AD3d 604, 608; Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749, 750). Accordingly, the Supreme Court properly granted those branches of the defendants’ motion which were to dismiss the causes of action alleging breach of fiduciary duty and fraud."