Departure, Proximate Cause and Ascertainable Damages are the holy triumvirate of legal malpractice. Miami Capital, LLC v Hurwitz 2019 NY Slip Op 05332 Decided on July 2, 2019
Appellate Division, First Department illustrates what happens when one or more of these elements are missing, or at best, speculative.
“Defendant’s motion was properly granted because while plaintiff anticipates that it could be subject to a rescission claim at some point in the future, such alleged damages are purely speculative and not yet ripe. Since damages in a legal malpractice case are designed “to make the injured client whole” (Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 42 ), having failed to plead actual damages, plaintiff’s complaint fails to state a claim (see Heritage Partners, LLC v Stroock & Stroock & Lavan LLP, 133 AD3d 428 [1st Dept 2015], lv denied 27 NY3d 904 ; Lavanant v General Acc. Ins. Co. of Am., 212 AD2d 450 [1st Dept 1995]).
Plaintiff has also failed to establish defendant’s negligence by alleging that he did not exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (see O’Callaghan v Brunelle, 84 AD3d 581 [1st Dept 2011], lv denied 18 NY3d 804 ). The contract of sale placed the burden on the seller to obtain any necessary court approval for the sale of its property. As seller’s counsel advised defendant that the seller did not need court approval because the property was not “substantially all” of its assets (see N-PCL 510), plaintiff has not adequately pled that defendant breached his duty of care as its lawyer by not obtaining court approval for the sale.”