Client buys some gas stations and believes that it was unfairly kept from sharing in some condemnation awards on the property that mostly (or all) went to seller.  Client sues attorneys for not obtaining the unpaid condemnation awards.  Defendants claim it was strategy.  Result?

In Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C.  2014 NY Slip Op 07632  Decided on November 12, 2014  the Appellate Division, Second Department determined that this was strategy and not a simple mistake.  The standard?

"To establish a cause of action alleging legal malpractice, a plaintiff must show that the attorney failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession, and that such negligence was a proximate cause of the actual damages sustained (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Frederick v Meighan, 75 AD3d 528, 531). Under the attorney judgment rule, "selection of one among several reasonable courses of action does not constitute malpractice" (Rosner v Paley, 65 NY2d 736, 738; see Ackerman v Kesselman, 100 AD3d 577; Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 847). "To establish entitlement to the protection of the attorney judgment rule, an attorney must offer a reasonable strategic explanation’ for the alleged negligence" (Ackerman v Kesselman, 100 AD3d at 579, quoting Pillard v Goodman, 82 AD3d 541, 542). "To establish causation, a plaintiff 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" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Blanco v Polanco, 116 AD3d 892, 894).

Here, the defendants established their entitlement to judgment as a matter of law by demonstrating that the failure to draft clear, specific, and unambiguous language in an agreement for the purchase of assets, so as to provide that the subject assets included certain unpaid condemnation awards, was a reasonable strategic decision taken to avoid an increase in the purchase price, and that the drafting of more specific language would not have resulted in the inclusion of the condemnation awards in the sale without an increase in the purchase price. In opposition, the plaintiffs failed to raise a triable issue of fact with respect to either element of the legal malpractice cause of action (see Zuckerman v City of New York, 49 NY2d 557, 562). "A mere hope . . . that somehow or other on cross examination credibility of a witness . . . can be put in issue is not sufficient to resist a motion for summary judgment’" (Trails W. v Wolff, 32 NY2d 207, 221, quoting Hurley v Northwest Publ. Inc., 273 F Supp 967, 974 [D Minn], affd 398 F2d 346 [8th Cir]; see Angeles v Goldhirsch, 268 AD2d 217). Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint (see Rodriguez v Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551, 552; Noone v Stieglitz, 59 AD3d 505, 507)."