The least understood part of legal malpractice litigation is the “but  for” standard, in which Plaintiff must demonstrate that “but for” the negligence (or departure) of the attorney, plaintiff would have enjoyed a better or more economically favorable outcome.  In most instances plaintiff correctly recognizes the departure, and the damages are often self-evident.  This is where otherwise good legal malpractices cases go to die.

Antonelli v Guastamacchia  2015 NY Slip Op 06870  Decided on September 23, 2015
Appellate Division, Second Department is today’s example.

“In an action, inter alia, to recover damages for legal malpractice and breach of fiduciary duty, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated August 22, 2013, as granted that branch of the motion of the defendants Steven Decker, Esq., and Decker, Decker, Dito & Internicola, LLP, which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable 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” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301; see Rehberger v Garguilo & Orzechowski, LLP, 118 AD3d 767). “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 Quantum Corporate Funding, Ltd. v Ellis, 126 AD3d 866; Kutner v Catterson, 56 AD3d 437). To prevail on a summary judgment motion, a “defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements” (Alizio v Feldman, 82 AD3d 804, 804; see Smith v Kaplan Belsky Ross Bartell, LLP, 126 AD3d 877; Affordable Community, Inc. v Simon, 95 AD3d 1047).

Here, the plaintiffs alleged that the defendants Steven Decker, Esq., and Decker, Decker, Dito & Internicola, LLP (hereinafter together the Decker defendants), represented them in a real estate venture in which the plaintiff Nicholas Antonelli loaned the defendant Steven Guastamacchia the sum of $600,000, and that the plaintiffs sustained damages when Guastamacchia failed to repay the loan. In support of their motion for summary judgment dismissing the complaint, the Decker defendants established, prima facie, that even if they ” failed to exercise the ordinary [*2]reasonable skill and knowledge commonly possessed by a member of the legal profession'” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442, quoting McCoy v Feinman, 99 NY2d at 301-302), any such failure was not a proximate cause of the plaintiffs’ alleged damages when Guastamacchia did not repay the loan. In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562; Hashmi v Messiha, 65 AD3d 1193, 1195; see also Unger v Paul Weiss Rifkind Wharton & Garrison, 265 AD2d 156).”