Scopia Windmill LP v Olshan Frome Wolosky LLP 2022 NY Slip Op 03996 Decided on June 21, 2022 Appellate Division, First Department succinctly describes how legal malpractice is a comparison of the actual outcome versus the hypothetical better outcome had mistakes not been made.
“Plaintiffs assert a legal malpractice claim alleging that defendant law firm was negligent in failing to perfect a security interest by timely filing a UCC-1 financing statement in connection with a loan they made. Contrary to defendant’s contention, the allegations underlying the claim are not “couched in terms of gross speculations on future events” (see Phillips-Smith Specialty Retail Group II v Parker Chapin Flattau & Klimpl, 265 AD2d 208 [1st Dept 1999], lv denied 94 NY2d 759 ). To the contrary, supported by plausible expert opinion, they depict a hypothetical course of events flowing from the failure to file that caused plaintiffs ascertainable damage that would not have occurred had the lien been timely filed, thereby raising an issue of fact sufficient to defeat summary dismissal of the claim (see e.g. A&L Vil. Mkt., Inc. v 344 Vil., Inc., 170 AD3d 1095 [2d Dept 2019]).”