Barouh v Law Offs. of Jason L. Abelove  2015 NY Slip Op 06769 [131 AD3d 988] September 16, 2015    Appellate Division, Second Department  like so much of legal malpractice revolves around the question of proximate cause.  Put another way, “sure a mistake was made” but so what.  What was the demonstrable effect?

“In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Reilly, J.), dated September 3, 2013, as denied those branches of her motion which were for summary judgment on the first and second causes of action, which alleged legal malpractice and breach of fiduciary duty, respectively, and to strike a stated portion of the answer, and granted those branches of the defendants’ cross motion which were pursuant to CPLR 3211 (a) (7) to dismiss the fourth and fifth causes of action, which alleged a violation of Judiciary Law § 487 and fraud, respectively.”

“The plaintiff commenced the instant action against the defendants Jason Abelove and the Law Offices of Jason L. Abelove (hereinafter together the defendants) to recover damages, inter alia, for legal malpractice, based in large part upon Abelove’s failure to disclose his prior representation of BEA to the plaintiff at the time of the Second Shareholder Action. The complaint alleged that as a result of Abelove’s conduct, the plaintiff incurred legal fees and expenses in defending against the BEA defendants’ motion to dismiss. The plaintiff moved for summary judgment on the complaint and to strike a stated portion of the defendants’ answer. The defendants cross-moved, among other things, to dismiss the fourth and fifth causes of action, which alleged a [*2]violation of Judiciary Law § 487 and fraud, respectively. The Supreme Court granted the defendants’ cross motion and denied the plaintiff’s motion. The plaintiff appeals.”

“The Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the fourth cause of action, which alleged a violation of Judiciary Law § 487. The complaint failed to adequately allege that the defendants’ allegedly deceitful conduct proximately caused the plaintiff’s damages, which consisted of her legal fees and expenses in defending against the BEA defendants’ motion to dismiss. The crux of the plaintiff’s contention is that the BEA defendants would not have chosen to move for dismissal in the Second Shareholder Action on the ground that the litigation was “poisoned” if Abelove had disclosed to the plaintiff that he previously represented BEA, and she, as a result, did not retain Abelove. The alleged damages, however, stem from the BEA defendants’ independent decision to move for dismissal. Thus, speculation is required to conclude that the BEA defendants would not have moved for dismissal if Abelove disclosed his representation of BEA to the plaintiff. Accordingly, the plaintiff’s allegation that Abelove’s deceitful conduct was the proximate cause of her incurring legal fees and expenses in defending against the BEA defendants’ motion to dismiss is speculative (see Mizuno v Barak, 113 AD3d 825, 827 [2014]; cf. Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848 [2012]).”