It’s popularly thought that legal malpractice is all about the mistakes made by an attorney.  While that is the first elements of legal malpractice, there are far harder hurdles to jump in a successful case.  Mistakes, or problems in the way a case was handled are not that difficult to fine, attorneys being human, and the natural law of imperfection still remains in effect.

A successful legal malpractice case requires departure, proximate connection with some financial loss, ascertainable collectible  damages and proof that the attorney’s mistake was the real ["but for"] reason for the financial loss.  In Route 9A Realty Corp. v. Vincent A. DeIorio Law Firm, 015931/06;Decided: January 6, 2010; Justice Ute Wolff Lally  we see defendants showing how the last three elements often decide how a case ends.

"According to the complaint, "[d]uring the period 1998 through 2002, on at least two occasions, defaults occurred on the payments due pursuant to the tax installment agreement." Further, "[o]n or about July 31, 2002 the Town commenced a tax foreclosure proceeding against numerous property owners, including Route 9A which allegedly owed taxes in the amount of $105,905.75.The last day to redeem the property was November 7, 2002.On or about August 8, 2002 the plaintiff retained the defendants attorneys (the Firm) as counsel for the plaintiff in the Tax Foreclosure Action.

It is alleged that from the time the Firm was retained until the November 7, 2002 redemption date, the Firm did not advise the plaintiff that if the taxes were not paid by the redemption date, it would lose all right, title and interest in the Property.

The complaint also alleges as follows: the firm breached its duty of care to the plaintiff by failing to research and correctly interpret provisions of the Real Property Tax Law; by failing to perfect an appeal; and by failing to ensure that plaintiff would be able to recover and develop the Property. Moreover, the plaintiff alleges it "had the financial wherewithal to obtain the necessary monies to satisfy the outstanding taxes." However, in December 2005 a judgment of foreclosure was entered as a result of which the plaintiff lost its right, title and interest in the Property and its right to develop the Property.

In opposition to the motion for summary judgment the plaintiff contends that from February 7, 2002, to December 5, 2004, defendants led plaintiff to believe the property would not be lost even if a foreclosure occurred, but rather could be recovered at auction. In support of this assertion, plaintiff refers to the deposition of Bernard Deutsch. However, the one page of the Deutsch transcript, a copy of which is annexed to the Notice of Cross Motion does not support plaintiff attorney’s claim. Nor does Exhibit 18 support plaintiff’s attorneys’ claim that "defendants insisted that plaintiff could buy back the property, pay the taxes, receive the proceeds from the sale over and above the taxes." In further opposition to defendants’ motion for summary judgment the plaintiff submitted a 10-page affidavit by David C. Wilkes, a purported expert on real property tax matters. Plaintiff’s expert opines that "[i]n my opinion, an ordinary attorney with reasonable skill and ability, after having read the installment agreement, would have advised plaintiff the only manner in which to retain the property was to pay the taxes. Without such payment, the Town was entitled to awny [sic] entry of judgment as of the redemption date of November 7, 2009. However, it is clear from the testimony of defendant Patrick V. Deiorio, he advised the plaintiff that if the taxes were not paid by the redemption date the plaintiff would risk losing the property. Plaintiff has failed to present any documentary evidence to support the conclusory allegations that the plaintiff had sufficient resources to pay the taxes as of the redemption date. Plaintiff does not refute defendants’ assertion that as of the redemption date, the plaintiff owed debts in excess of $1.2 million. Nor does plaintiff establish its ability to pay the taxes, its access to funds, its ability to borrow such funds or its desire to borrow said funds."