It’s ironic when a legal malpractice case, which alleges that the attorneys being sued departed from good and accepted practice is itself dismissed for technical reasons.  Risk Control Assoc. Ins. Group v Maloof, Lebowitz, Connahan & Oleske, P.C.  2015 NY Slip Op 03067  Decided on April 9, 2015  Appellate Division, First Department is one such example.  Here, the company which lost money was never a plaintiff, and when the rest of the plaintiffs tried to add the actual money loser, it was too late.

“Plaintiff, a claims administrator for an insurer, commenced this legal malpractice action against defendants, who were retained to represent the insurer’s policyholder in a personal injury action. In a previous appeal, plaintiff’s complaint was dismissed for its failure to allege that it had a “contractual obligation to pay for the loss in the personal injury action,” and to allege that it sustained actual damages because of this obligation” (Risk Control Assoc. Ins. Group v Maloof, Lebowitz, Connahan & Oleske, P.C., 113 AD3d 522, 522 [1st Dept 2014] [Risk Control I]).

After this Court handed down the decision affirming the dismissal of the complaint, plaintiff moved to amend its complaint by proposing to add several plaintiffs, alleging that all the plaintiffs provided insurance to the policyholder, and that all the plaintiffs retained defendants.

Here, no damages can be “reasonably inferred,” as plaintiff’s amended allegations are defeated by the documentary evidence it submitted. The affidavit submitted by the vice president of one of the proposed plaintiffs averred that plaintiffs were all claims administrators. Furthermore, the vice president attested that the loss, allegedly resulting from defendants’ malpractice, was paid by an entity who was not a party plaintiff, or proposed party plaintiff. Thus, plaintiff failed to allege either a “contractual obligation to pay for the loss,” or actual damages (Risk Control I at 522; Tenzer, Greenblatt at 45).

Moreover, plaintiff’s conclusory allegations of representation will not suffice in the absence of an attorney client relationship with defendants (see Denenberg v Rosen, 71 AD3d 187, 196 [1st Dept 2010], lv dismissed 14 NY3d 910 [2010]).

To the extent the motion sought to add the primary insurer as a plaintiff, defendants would be unduly prejudiced by the introduction of that new party plaintiff after the statute of limitations has expired (see Bellini v Gersalle Realty Corp., 120 AD2d 345 [1st Dept 1986]).”