It’s been 7 years since Bernie Madoff was arrested, yet his craftwork still is filtering through the legal malpractice world. In Delollis v Archer 2015 NY Slip Op 04084 Decided on May 13, 2015 Appellate Division, Second Department we see an unsuccessful claim by benefit funds of the carpenters’ unions against their attorneys, whom they say should have detected the scheme.
“he plaintiffs, who are the trustees of several local and regional benefit funds affiliated with carpenters’ unions, commenced this action to recover damages for legal malpractice against the defendants Robert M. Archer and Archer, Byington, Glennon & Levine, LLP, alleging that the negligent performance of their professional duties resulted in losses relating to the Ponzi scheme orchestrated by Bernard L. Madoff and Bernard L. Madoff Investment Securities.
“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757 [internal quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438). In addition, to establish causation, a plaintiff must show that he or she would not have suffered any damages but for the attorney’s negligence (see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d at 757).
Here, accepting as true the facts alleged in the complaint and according the plaintiffs the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88), the complaint, on its face, failed to allege facts from which it could be reasonably inferred that the plaintiffs would not have suffered any damages but for the defendants’ negligence (see Sierra Holdings, LLC v Phillips, Weiner, Quinn, Artura & Cox, 112 AD3d 909, 910; Citidress II Corp. v Tokayer, 105 AD3d 798, 798-799; Wald v Berwitz, 62 AD3d 786).”