There are at least three forms of pleading available in a legal malpractice case.  The first is malpractice itself, the second breach of contract and the third breach of fiduciary duty.  For legal malpractice  "a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). "To establish causation, a plainitff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence" (id.). "

As we see in Alizio v Feldman ; 2011 NY Slip Op 01776  Decided on March 8, 2011  Appellate Division, Second Department  not all need exist at the same time.  There (although the decision is very opaque on the facts, as are the decisions below) "Accordingly, the Supreme Court properly denied those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging legal malpractice.

However, the Supreme Court should have granted those branches of the defendants’ [*2]motion which were for summary judgment dismissing so much of the first, third, and fifth causes of actions as alleged breach of contract as duplicative of the causes of action alleging legal malpractice, as they arose from the same facts and do not allege distinct damages (see Financial Servs. Veh. Trust v Saad, 72 AD3d 1019, 1020; Town of Wallkill v Rosenstein, 40 AD3d 972, 974). In addition, the Supreme Court should have granted those branches of the defendants’ motion which were for summary judgment dismissing so much of the second, fourth, and sixth causes of action as sought declaratory relief. Declaratory relief is inappropriate since the plaintiffs have an adequate alternative remedy in the form of a cause of action alleging legal malpractice (see BGW Dev. Corp. v Mount Kisco Lodge No. 1552 of Benevolent & Protective Order of Elks of U.S. of Am., 247 AD2d 565, 568; Apple Records v Capitol Records, 137 AD2d 50, 54). "