The Death of a Legal Malpractice Case
We often wonder whether legal malpractice cases are subject to a higher form of scrutiny, although it may also be true that mistakes are more often made by attorneys in their worst (underlying) cases. In any event sometimes a legal malpractice case goes to the jury on the real question of whether plaintiff could have prevailed in the underlying case (the "but for" issue) and sometimes the legal malpractice case is ended at the motion stage. Here is one that was ended early.
Magidson v Badash ; 2012 NY Slip Op 00935 ; Appellate Division, Second Department is a legal malpractice case in which the underlying matter remains undescribed. The legal malpractice suffered from infirmities in the underlying case, and failed the "but for" problem.
"The complaint failed to state a cause of action to recover damages for legal malpractice because the plaintiff neglected to plead that she would have prevailed in the underlying action, commenced in the Supreme Court, New York County, but for the defendants' alleged malpractice in failing to file certain motions and appeal from certain orders issued in that action (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Kuzmin v Nevsky, 74 AD3d 896, 898; see also Weiner v Hershman & Leicher, 248 AD2d 193).
Moreover, the Supreme Court providently exercised its discretion in denying the plaintiff's cross motion for leave to amend the complaint, as the proposed amendment was patently devoid of merit. The Appellate Division, First Department, concluded that the complaint in the underlying action was properly dismissed because the plaintiff commenced that action after the applicable statute of limitations had expired (see Magidson v Otterman, 57 AD3d 264, 264), and the proposed amendment, which did not include allegations that the defendants committed malpractice by failing to timely commence the underlying action, would not alter that result (see Matter of New York County DES Litig., 89 NY2d 506, 514; Byrd v Manor, 82 AD3d 813, 815).