Bringing a legal malpractice case based upon a badly handled legal malpractice case is a perilous situation.  Worse still if there is an ambiguous decision upon which it is all based.  So it was in 4777 Food Servs. Corp. v Anthony P. Gallo, P.C.  2017 NY Slip Op 04086  Decided on May 24, 2017 Appellate Division, Second Department where the judge in the underlying case precluded the use of certain evidence.  Did this lead to the loss, or was the evidence not good enough in any instance?

“In this action to recover damages for legal malpractice, the complaint alleges that the defendants, Anthony P. Gallo, P.C., and Anthony P. Gallo (hereinafter together Gallo), who represented the plaintiff in a prior legal malpractice action against the plaintiff’s former attorneys, Demartin & Rizzo, P.C., and Joseph N. Rizzo, Jr. (hereinafter together Rizzo), negligently failed to respond to certain discovery demands by Rizzo, which resulted in the Supreme Court (Gazzillo, J.) precluding the introduction of evidence in the plaintiff’s legal malpractice action against Rizzo (4777 Food Serv. Corp. v DeMartin & Rizzo, P.C., 2013 NY Slip Op 33007 [U] [Sup Ct, Nassau County]; hereinafter the Rizzo order). The complaint further alleges that, as a result of this evidence being precluded, the court which issued the Rizzo order found that the plaintiff had failed to meet its burden of proof as to the element of damages sustained as a result of Rizzo’s malpractice.

In this action, Gallo moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, and relied in part on the Rizzo order. Gallo argued that the Rizzo order held that even if the subject evidence had not been precluded, the evidence would have been too speculative to support a damages award, and as a result, the complaint was subject to dismissal.

In the order appealed from, the Supreme Court (Asher, J.), relying on certain language in the Rizzo order, determined that Justice Gazzillo “expressly found” that the evidence, had it not been precluded, would have been too speculative to permit an award of damages, and granted Gallo’s motion pursuant to CPLR 3211(a) to dismiss. The plaintiff appeals, and we reverse.”

“Here, the Rizzo order does not utterly refute the allegations in the complaint, nor does it establish a defense as a matter of law. The order concludes, in part, that there was no proof of actual damages presented by the plaintiff, due to the plaintiff’s failure to respond to at least two of Rizzo’s discovery demands, which resulted in the preclusion of the damages evidence. The Rizzo order then states, referring to the precluded evidence, “[m]oreover, even if, arguendo the [c]ourt were to overlook that deficiency, its probative value is highly suspect” (4777 Food Serv. Corp. v DeMartin & Rizzo, P.C., 2013 NY Slip Op 33007 [U], *9). Contrary to the Supreme Court’s conclusion, this alternate holding, which constitutes dicta, was not a finding on the merits and did not utterly refute the allegations in the complaint against Gallo (see O’Connor v G & R Packing Co., 53 NY2d 278; Malloy v Trombley, 50 NY2d 46, 50; Pollicino v Roemer & Featherstonhaugh, 277 AD2d 666, 667-668). Accordingly, the Supreme Court should have denied Gallo’s motion pursuant to CPLR 3211(a) to dismiss the complaint.”