Legal malpractice in child custody / child support settings is notoriously difficult to prove. To begin, there is often a privity problem. If that issue is solved, then the speculation question of “what would the judge have done if…” comes up. It seems that this was the shortcoming in Chaudhuri v Kilmer 2018 NY Slip Op 00964 [158 AD3d 1276] February 9, 2018 Appellate Division, Fourth Department. The question of how a judge would have ruled if the attorney had presented this particular piece of evidence or that argument rarely works out in plaintiff’s favor.
“We likewise affirm the order in appeal No. 1. In order to recover damages in a legal malpractice action, a plaintiff must establish that the attorney “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, that this failure was the proximate cause of actual damages to plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence” (Hufstader v Friedman & Molinsek, P.C., 150 AD3d 1489, 1489 [3d Dept 2017] [internal quotation marks omitted]). In moving for summary judgment dismissing the complaint in such an action, a defendant must “present evidence in admissible form establishing that plaintiff is unable to prove at least one of [those] elements” (id. at 1490 [internal quotation marks omitted]; see New Kayak Pool Corp. v Kavinoky Cook LLP, 125 AD3d 1346, 1348 [4th Dept 2015]). Here, defendant met her initial burden on the motion by establishing that plaintiff is unable to prove proximate cause and damages, and plaintiff “failed to submit nonspeculative evidence in support of” those elements in opposition to defendant’s motion (New Kayak Pool Corp., 125 AD3d at 1348 [internal quotation marks omitted]; see Hufstader, 150 AD3d at 1490-1491; Barbieri v Fishoff, 98 AD3d 703, 704-705 [2d Dept 2012]). “