McHenry v Bader, Yakaitis & Nonnenmacher, LLP 2015 NY Slip Op 25429 [50 Misc 3d 977] May 22, 2015 Billings, J. is a prime example of what makes the “but for” portion of legal malpractice so different.  In this case, as in most we have experienced, the departure, or mistake is quite evident.  It was service of legal papers at the wrong address.  Whether plaintiff can show that “but for” this mistake he would have collected $ 350,000 is a completely different story.

“Plaintiff’s complaint against defendants, whose law firm represented him in an underlying action, includes seven claims relating to legal malpractice. Plaintiff has alleged four categories of defendants’ failures in his underlying action. (1) Defendants failed to prosecute it with ordinary skill, competence, and diligence. (2) They failed to plead a negligence claim against the defendant Robert San Miguel. (3) They failed to oppose the motion for summary judgment by the defendant Rebecca Ramirez against whom plaintiff claimed negligent maintenance of the premises causing his injury. (4) They failed to serve San Miguel with notices of the trial and subsequent inquest on damages, resulting in a vacatur of the judgment obtained after San Miguel’s default at trial. Plaintiff’s fifth and sixth claims seek the interest that would have accrued on the judgment defendants’ negligence caused him to lose, as another component of his compensatory damages, and punitive damages over and above his compensatory damages. Plaintiff’s seventh claim alleges that his action is not subject to CPLR article 16.

Defendants move for summary judgment dismissing the complaint. (CPLR 3212 [b].) Plaintiff concedes that his second, third, and fourth claims simply allege specific acts of negligence to amplify his first claim of defendants’ negligence constituting malpractice. Plaintiff also concedes that the decision by the Appellate Division, First Department, that San Miguel’s intentional assault and battery caused the injury plaintiff claimed in the underlying action, Empire Ins. Co. v Miguel (114 AD3d 539, 539 [1st Dept 2014]), precludes him from establishing the defendants’ liability for negligence in that action, an essential element of his second and third claims in this action for legal malpractice. Plaintiff therefore discontinues those claims, but cross-moves for summary judgment on his fourth and fifth claims. (CPLR [*2]3212 [b], [e].)

{**50 Misc 3d at 979}In the underlying action, plaintiff obtained a judgment for $385,308.75 against San Miguel when he was unrepresented and failed to appear for trial. San Miguel subsequently retained an attorney and moved to vacate that judgment. The Appellate Division, Second Department, vacated the judgment, finding that the service of notices of the trial and inquest by plaintiff’s attorneys, defendants in this action, on San Miguel at an incorrect address constituted a reasonable excuse for his default at the trial. (McHenry v Miguel, 54 AD3d 912, 913-914 [2d Dept 2008].) Plaintiff subsequently obtained a jury verdict and judgment for $761,200 in May 2012, but claims this award has been uncollectible due to San Miguel’s depletion of his assets before 2012.”

“Even assuming defendants’ malpractice in serving San Miguel, factual issues nonetheless remain whether that negligence proximately caused plaintiff to suffer damages, especially when all inferences on the issue of causation are drawn in defendants’ favor. (Meralla v Goldenberg, 126 AD3d at 450; Angeles v Aronsky, 109 AD3d 720, 723 [1st Dept 2013].) Plaintiff does not claim that defendants were negligent in failing to collect the August 2006 judgment before it was vacated in September 2008, but insists that the 2006 judgment would have been collectible against San Miguel’s assets at least from when it was vacated until he obtained his 2012 judgment. Plaintiff offers no evidentiary support, however, for his claim that, but for defendants’ alleged negligence in serving San Miguel, the 2006 judgment would not have been vacated. Plaintiff merely assumes blithely that, if defendants served San Miguel notices at his correct address, (1) San Miguel still would have defaulted, but would not have obtained a vacatur of [*4]plaintiff’s judgment, or (2) if San Miguel did not default, plaintiff still would have obtained a favorable verdict at an earlier trial. Therefore, plaintiff’s assumption that he would not have sustained damages from a lost opportunity to collect the 2006 judgment, had defendants served San Miguel at his correct address, on this record, is speculative. (Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman LLP, 110 AD3d 426, 427 [1st Dept 2013]; Learning Annex, L.P. v Blank Rome LLP, 106 AD3d 663, 663-664 [1st Dept 2013]; Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d at 652.)

Plaintiff further fails to establish ascertainable damages. Although he claims the original judgment was collectible in 2006, but the later judgment was uncollectible in 2012, he shows neither fact, nor even any attempt from 2006 to 2008 to collect the original judgment. He relies only on defendant attorneys’ claim in August 2007 in the underlying action that their client “is about to seize [San Miguel]’s assets.” (Exhibit 9, ¶ 6 to aff of Loretta McHenry in support of plaintiff’s cross motion exhibit 2.) Plaintiff’s attorney claimed this intended future act for purposes of opposing San Miguel’s motion to vacate the 2006 judgment, as a reason for the court to deny San Miguel’s motion, but without any evidentiary facts that that judgment was collectible before, during, or after August 2007. (People v {**50 Misc 3d at 983}Brown, 98 NY2d 226, 232 and n 2 [2002]; Naughton v City of New York, 94 AD3d 1, 12 [1st Dept 2012]; Mesler v PODD LLC, 89 AD3d 1533, 1536 [4th Dept 2011]; Rahman v Smith, 40 AD3d 613, 615 [2d Dept 2007]; see Seldon v Crow, 112 AD3d 472, 472 [1st Dept 2013].) In fact, since the judgment was not actually vacated until September 2008, by the Appellate Division, and plaintiff does not show that the judgment ever was stayed before then, 13 months remained as of August 2007 to seize San Miguel’s assets if he owned any.

Plaintiff may not rely on his documents regarding the availability of San Miguel’s assets before the 2012 judgment to make a prima facie showing of actual and ascertainable damages, as he offers this evidence for the first time in reply and then more such evidence long after defendants’ motion and his cross motion were submitted. (Sylla v Brickyard Inc., 104 AD3d 605, 606 [1st Dept 2013];Calcano v Rodriguez, 103 AD3d 490, 491 [1st Dept 2013]; JPMorgan Chase Bank, N.A. v Luxor Capital, LLC, 101 AD3d 575, 576 [1st Dept 2012].) Most of the documents are unauthenticated and inadmissible in any event, neither certified as public records (e.g. CPLR 4520, 4540 [a], [b]; Murray v City of New York, 74 AD3d 550, 550 [1st Dept 2010]; Rivera v GT Acquisition 1 Corp., 72 AD3d 525, 526 [1st Dept 2010]; Coleman v Maclas, 61 AD3d 569, 569 [1st Dept 2009]; People v Smith, 258 AD2d 245, 249-250 [4th Dept 1999]), nor accompanied by an affidavit or certification laying a foundation for the documents as business records or another exception to the rule against hearsay. (People v Ramos, 13 NY3d 914, 915 [2010]; People v Vargas, 99 AD3d 481, 481 [1st Dept 2012]; IRB-Brasil Resseguros S.A. v Portobello Intl. Ltd., 84 AD3d 637, 637-638 [1st Dept 2011]; Babikian v Nikki Midtown, LLC, 60 AD3d 470, 471 [1st Dept 2009].)”