Plaintiff alleges that defendant "caused an action to be commenced against the plaintiff and a preclusion order to be entered against him in that action, and that they failed to assert the defenses of laches and statute of limitations in the underlying action."  Unfortunately for plaintiff, the Appellate Division determined that he was unable to show that the case would have come out better had the attorney adopted some other tactic. 

In Leiner v Hauser  2014 NY Slip Op 06180  Decided on September 17, 2014  Appellate Division, Second Department it was alleged that the attorney "caused" a case to be started against plaintiff, and then failed to plead certain defenses.  The Appellate Division dismissed. 

"Here, the Supreme Court should have granted that branch of the motion of the defendants Estate of Noel Hauser and Noel Hauser & Associates (hereinafter together the appellants) which was pursuant to CPLR 3211(a) to dismiss so much of the complaint insofar as asserted against them as was premised upon allegations that they caused a preclusion order to be entered against the plaintiff in an underlying action. Viewing the complaint in the light most favorable to the plaintiff, it fails to plead specific factual allegations showing that, but for the appellants’ alleged negligence in causing the preclusion order to be entered, the plaintiff would have obtained a more favorable outcome in the underlying action (see CPLR 3211[a][7]; Benishai v Epstein, 116 AD3d 726, 728; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d at 1083).

Furthermore, the Supreme Court should have granted that branch of the appellants’ motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint insofar as asserted against them as was premised upon allegations that they caused an action to be commenced against the plaintiff, and that they failed to assert the defenses of laches and statute of limitations in that action. With respect to these allegations, viewing the complaint in the light most favorable to the plaintiff, it fails to set forth facts sufficient to allege that the appellants’ alleged failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff actual and ascertainable damages (see CPLR 3211[a][7]; Held v Seidenberg, 87 AD3d at 617)."