Gur v Nadel & Clarlo, P.C.     2018 NY Slip Op 32779(U)  October 29, 2018  Supreme Court, New York County  Docket Number: 650275/2018 Judge: Arthur F. Engoron is an example of a legal malpractice case pled without regard to how one connects the complained of conduct with a bad economic outcome, or loss of a claim.  In the end, there is still an overbilling case, but no legal malpractice case.

“On May 1, 2015, Gur executed a retainer agreement (the “Retainer Agreement”) and paid a
$10,000 retainer fee thereby engaging Nadel & Ciarlo, P.C. (“N&C”) to commence legal action
against Gur’s condominium board (the “Underlying Litigation”). The individual defendants,
Lorraine Nadel (“Nadel”) and Michael Ciarlo (“Ciarlo”), are partners of defendant law firm
N&C. On May 22, 2015, N&C commenced the Underlying Litigation by filing a summons and
complaint in the Supreme Court, Queens County under the caption Abraham Gur v Vere
Condominium, Board of Managers of the Vere Condominium and NNC Property Management,
LLC d./b/a KW Property_ Management, Index Number 705348/2015. ”

“Sometime in December 2016, Gur fired N&C from representing him in the Underlying
Litigation. Since that time Gur has been representing himself in the Underlying Litigation as a
prose plaintiff. By December 2016, N&C’s legal fees to Gur totaled $51,332.67 after applying
the credits of $2,141.50 and $425. By December 2016 Gur had paid a total of$49,144.67 in
legal fees, even after applying the credits.
On February 6, 2018, Nadel emailed Gur offering, as a courtesy, a return of $7,500 in legal fees
and a waiver of Gur’s outstanding balance of $2, 188, provided the parties exchange releases and
sign an agreement. After continued email correspondence between Gur and Nadel, on February
8, 2016, Nadel agreed to accept Gur’s counter-offer, which was for a return of $8,750 in legal
fees and the waiver of Gur’s outstanding balance. However, Nadel failed to deliver the
contemplated release and agreement and therefore the return of $8,750 and waiver of the
outstanding balance of $2, 188 never came to fruition. As a result, Gur commenced the instant
action against defendants, asserting theories of breach of contract and legal malpractice. ”

“These allegations do not establish proximate cause as they do not establish how Gur was harmed
in the Underlying Litigation. In fact, the complaint is devoid of allegations specifying how the
Underlying Litigation was harmed as a result of defendants alleged negligence. Speculative
allegations such as that Gur has been able to get more done while representing himself pro se in
the Underlying Litigation than the defendants did when they were acting as his legal counsel are
conclusory and speculative. Fleisher v Ballon Stoll Bader & Nadler, PC, 2015 NYMisc LEXIS
3625, *7 (2015) (“Proximate causation is a requisite element of a legal malpractice claim and it
must be based on more than ‘mere speculation’.”). Likewise, the complaint’s allegation that
Hanan’s change in legal strategies “was confusing and did not make [Gur’s] case strong in the
eyes of the Defendants [in the Underlying Litigation]” is, without more, speculative and
conclusory.
Additionally, the complaint fails to plead any facts illustrating actual cognizable damages
suffered by Gur. The allegations pertaining to damages in the complaint are merely speculative
and conclusory, and therefore do not establish the requisite element of damages. “Conclusory
allegations of damages or injuries predicated on speculation cannot suffice for a malpractice
action, and dismissal is warranted where the allegations in the complaint are merely conclusory
and speculative.” Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848 (2nd Dept 2012). Gur’s
allegation that he has been able to get more done on the Underlying Litigation representing
himself prose, as opposed to N&C’s representation, is speculative and conclusory. See
Pellegrino v File, 291 AD2d 60, 63-64 (1st Dept 2002). Actual damages cannot be inferred from
the pleadings because Gur has failed to allege specifically how his representation in the
Underlying Litigation was harmed outside of paying defendants for their legal work. However,
claims of excessive billing do not establish legal malpractice if the complaint does not allege that
the excessive billing affected Gur’s position in the Underlying Litigation. Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 (1st Dept 2014) (“Plaintiffs’ claims of excessive billing
and related conduct, which actions are not alleged to have adversely affected their [sic] claims or
defenses in the underlying action, do not state a claim for legal malpractice.”).
Accordingly, the second cause of action is subject to dismissal.”