Malvasio v Savran;  2011 NY Slip Op 31763(U);  June 30, 2011; Supreme Court, Nassau County
Judge: Jeffrey S. Brown is an illustration of the "but for" element of legal malpractice.  Plaintiff must be able to demonstrate that there would have been a better or different outcome had the attorneys done their job.

"Plaintiffs claim fails to allege material facts giving rise to a cognizable claim alleging
legal malpractice. By demonstrating that plaintiff did not possess, and was unable to submit
sufficient evidence, i. , documentary evidence, of the existence of the purported loans, and
Ursula Egger s promise to repay same, the moving defendants have shown that the essential
element of "but for" causation is absent from plaintiffs legal malpractice claim. Plaintiff failed
to establish defendants ‘ negligence by showing they did not exercise the ordinary reasonable skill
and knowledge commonly possessed by a member of the legal profession.
Although the court must accept the allegations in the complaint as true, bare legal
conclusions, as well as factual claims either inherently incredible or flatly contradicted by
documentary evidence, are insuffcient to defeat a motion to dismiss. Here, the complaint fails to
plead specific allegations demonstrating that "but for" defendants ‘ alleged negligence , she would
have prevailed in the underlying action. Nothing in plaintiffs submissions sheds any additional
light on or demonstrates that plaintiff has a meritorious claim against defendants Katherine
Richards and/or the Pellegrini law firm. The facts show that defendants notified plaintiff that
they could no longer represent her and had closed their file in the underlying matter as of March
, 2008.
The summary judgment motion in the Suffolk County action was granted on default
seven months after plaintiff had retained new counsel on June 17 2008. Plaintiff has failed to set
forth any factual basis on which to conclude that had defendants opposed the summary judgment
motion at issue, plaintiff would have prevailed in the suit against Mark Egger and ultimately
received the monies allegedly due and owing by the Egger estate."