Many people take a look at a legal malpractice situation and stop after identifying a departure. In more common language, after finding a mistake, the analysis ends. Failure to identify and have all elements of legal malpractice will lead to failure. Sapienza v Becker & Poliakoff 2019 NY Slip Op 05218 Decided on June 27, 2019 Appellate Division, First Department is an example:
“Plaintiff’s fraud claim was properly dismissed, as plaintiff did not allege “actual pecuniary loss sustained” by plaintiff’s decedent individually “as the direct result of” defendants’ alleged fraud (Lama Holding Co. v Smith Barney, 88 NY2d 413, 421  [internal quotation marks omitted]), with “the requisite particularity under CPLR 3016(b)” (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 ). The alleged “lost opportunity” damages are too speculative to support a recovery, since a plaintiff cannot be compensated under a fraud cause of action “for what [he] might have gained” (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142  [internal quotation marks omitted]).
The legal malpractice claim was also properly dismissed. Plaintiff did not allege “actual, ascertainable damages” incurred by plaintiff’s decedent “as a result of an attorney’s negligence” (Dempster v Liotti, 86 AD3d 169, 177 [1st Dept 2011]; see Humbert v Allen, 89 AD3d 804, 806 [2d Dept 2011]).”