We often ask whether the law of legal malpractice is different from the rest of the negligence world?  Why do attorneys get a second chance, in which judges ponder whether they could have won the case had they not made mistakes?

In Dempster v Liotti ; 2011 NY Slip Op 04408 ; Decided on May 24, 2011 ; Appellate Division, Second Department ; Belen, J. we see a prime example.  Judge Belen himself framed the issue:

"We are asked to consider whether an attorney who failed to oppose a motion to dismiss the complaint in an action underlying a legal malpractice action, and thereafter failed to file a timely notice of appeal from the order that granted the motion to dismiss, is entitled, under the facts of this case, to summary judgment dismissing the legal malpractice cause of action on the ground that such negligence did not proximately cause the dismissal of the underlying action. Here, we conclude that, since the underlying action was time-barred as a matter of law, the attorney’s negligence, although clearly inexcusable, was not a proximate cause of the plaintiff’s alleged injuries, and accordingly this malpractice action must be dismissed.

To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession," and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages (Leder v Spiegel, 9 NY3d 836, 837, cert denied sub nom. Spiegel v Rowland, 552 US 1257; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). As to the first prong, "[a]n attorney may be liable for ignorance of the rules of practice, for failure to comply with conditions precedent to suit, for neglect to prosecute or defend an action, or for failure to conduct adequate legal research" (Conklin v Owen, 72 AD3d 1006, 1007). However, even if a plaintiff establishes the first prong, the plaintiff must still demonstrate that he or she would have succeeded on the merits of the action but for the attorney’s negligence (see Hamoudeh v Mandel, 62 AD3d 948, 949; McCluskey v Gabor & Gabor, 61 AD3d 646, 648; Peak v Bartlett, Pontiff, Stewart & Rhodes, P.C., 28 AD3d 1028, 1030-31; see also Brodeur v Hayes, 18 AD3d 979; Raphael v Clune, White & Nelson, 201 AD2d 549, 550). Further, as to the second prong, the plaintiff must plead and prove actual, ascertainable damages as a result of an attorney’s negligence (see Barnett v Schwartz, 47 AD3d 197, 211). "[M]ere speculation about a loss resulting from an attorney’s alleged omission is insufficient to sustain a prima facie case of legal malpractice" (Siciliano v Forchelli & Forchelli, 17 AD3d 343, 345; see Dupree v Voorhees, 68 AD3d 810, 812-813; Plymouth Org., Inc. v Silverman, Collura & Chernis, P.C., 21 AD3d 464; Giambrone v Bank of N.Y., 253 AD2d 786).

In the instant action, the plaintiff alleges that Liotti failed to exercise the ordinary skill and knowledge commonly possessed by a member of the legal profession when he failed to file timely opposition papers in response to the RICO defendants’ motion to dismiss her amended complaint in the RICO action, and when he failed to timely appeal from the District Court’s subsequent order granting such motion. Liotti does not contest these allegations, and we conclude they are factually substantiated by the record.
 

Here, Liotti’s inexcusable failure to file timely opposition papers to the RICO defendants’ motion to dismiss the amended complaint and to file a timely notice of appeal from the District Court’s order granting such motion, clearly falls below the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (see Conklin v Owen, 72 AD3d at 1007; McCoy v Tepper, 261 AD2d 592, 593). However, as previously discussed, despite such negligence, Liotti is entitled to summary judgment inasmuch as the plaintiff’s civil RICO claim was time-barred as a matter of law. Consequently, Liotti has established that the plaintiff is unable to prove that she would have prevailed in the RICO action but for his negligence. In opposition, the plaintiff failed to raise a triable issue of fact (see Hamoudeh v Mandel, 62 AD3d at 949).