A guy owns a business (a club?) called Good Time Charlies, and wants to sell it.  He hires an attorney who drafts the business sale documents, which include a note for $ 80,000.  Unfortunately, no "acceleration" clause is included.  The transaction goes sour, and plaintiff sues the buyer.  It’s then he learns that he cannot obtain the entire amount.  Is it legal malpractice?

Defendant raises a series of defenses, including res judicata and collateral estoppel.  They all fail and the case continues. Leschinski v Bailey;  2012 NY Slip Op 30202(U);  January 11, 2012
Supreme Court, Nassau County; Docket Number: 1934/10; Judge: R. Bruce Cozzens tells us:

"An action for legal malpractice requires proof of three elements: 1) the negligence of the
attorney; 2) that the negligence was the proximate cause of the loss sustained; and 3) proof of
actual damages. In order to show proximate cause, the plaintiff-client must establish that "but
for" the attorney s negligence, the plaintiff would have prevailed in the matter at issue or would
not have sustained any damages (Levine v. Lacher Lovell-Taylor 256 AD2d 147(lst Dep l998)). In applying the foregoing legal standard and the elements for a claim of legal malpractice to the case at bar, this Court has determined that plaintiff sufficiently alleges that Bailey, an attorney, undertook to memorialize the terms of the transfer of his business interests to a third party, Bortone, and that Bailey and the plaintiff had a relationship that required Bailey to exercise the degree of skill commonly exercised by an ordinary member of the legal community. The pleadings also allege damages resulting from this Court’ s limiting of the plaintiff s award to the months of non payment as opposed to an accelerated judgment for the full value of the Note. Accordingly, the pleadings state a cognizable cause of action for legal malpractice.
As to defendants’ proffered arguments for dismissal under CPLR ~321l (a) 5 , a review of
the doctrine of res judicata and collateral estoppel is in order. Generally, under res judicata, a
final judgment precludes reconsideration of all claims which could have or should have been
litigated in the prior proceedings against the same party (emphasis added) ( see Wisell Indo-
Med Commodities, Inc. 74 AD3d 1059 (2nd Dept. 2010)). The doctrine of collateral estoppel
precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised
in the prior action or proceeding, and decided against that party or those in privity, (emphasis added) whether or not the tribunals or causes of action are the same (see Altegra Credit Co. Tin Chu 29 AD3d 718 (2nd Dept. 2006)). Where the prior adjudication involved the same parties and the same cause of action, res judicata applies. Under res judicata, or claim preclusion, a valid final judgment bars future actions between the parties on the same cause of action. Generally, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy ( see Breslin Realty Development. Corp. Shaw 72 AD3d 258 (2nd Dept. 2010)). Based on the foregoing, the doctrine of res judicata and collateral estoppel is wholly inapplicable to instant matter. The parties in the prior action, captioned Nothin’ But The Blues d/b/a Good Time (Charlies) v. Bortone under Index No. 7979/08, are not identical to the parties in the case at bar. Further, the issues litigated in that matter concerned Bortone s default under the Note. The claim of legal malpractice was not at issue nor was the defendant counsel a party to that action.