“Strict liability” renders a defendant legally responsible for damage and losses regardless of culpability or intent, fault or negligence. In Tang v Marks 2015 NY Slip Op 08110 Decided on November 12, 2015 Appellate Division, First Department it rendered plaintiff unable to sue defendant for legal malpractice.
“Defendant Marks, an attorney, represented plaintiffs in an underlying federal court action in which plaintiffs were found strictly liable under the Lanham Act, and in which the federal court entered a $400,000 judgment against them. Plaintiffs subsequently brought a legal malpractice and breach of contract action against Marks, claiming that, but for Marks’s negligence, plaintiffs would have faced a lower judgment.
To sustain a cause of action for legal malpractice, a plaintiff must show “(1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff’s losses; and (3) proof of actual damages” (Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). “In order to establish proximate cause, a plaintiff must demonstrate that but for the attorney’s negligence, she would have prevailed in the underlying matter or would not have sustained any ascertainable damages” (id. [emphasis added]). “[S]peculation on future events [is] insufficient to establish that the defendant lawyer’s malpractice, if any, was a proximate cause of any such loss” (id. at 734-735).
Here, as plaintiffs were admittedly strictly liable in the underlying federal action, they are unable to show that they would have prevailed and that they would not have sustained any ascertainable damages.”