The statute of limitations is approaching yet plaintiff has not suffered ascertainable damages. Potential damages loom, but nothing has actually happened yet. What to do if your attorney has made a mistake (perhaps a big mistake) yet actual ascertainable damages may yet be speculative?
The short answer is to commence the action and fight over how to proceed. A stand-still agreement might be reached, a tolling agreement (slightly different) might be reached, or a motion to dismiss must be navigated as in YT Madison, LLC v Sukenik, Segal & Graff, P.C. 2019 NY Slip Op 32112(U) July 19, 2019 Supreme Court, New York County Docket Number: 156293/2018 Judge: O. Peter Sherwood.
“In the complaint, plaintiff asserts three causes of action for legal malpractice. breach of
fiduciary duty and unjust enrichment. Each cause of action is based on Plaintiffs allegation
that Defendants negligently permitted the inclusion of a clause in the distribution of ‘Net
Proceeds” section of the Amended Operating Agreement that incorrectly increases from $32
million to $46 billion the amount of an agreed-upon cap on total distribution of Net Proceeds to NP Member. Under the original Operating Agreement. distributions of Net Proceeds in excess of $32 million that would otherwise be payable to NP Member are payable to plaintiff. In paragraph 68 of the complaint, Plaintiff alleges that defendants’ negligence in the drafting of the Amended Operating Agreement used over $14 million in damages. Plaintiff also demands that Defendants reimburse it for all of the legal tees it has paid in connection with the transaction as additional compensation for the damages mused by the allegedly negligent draftsmanship. ”
“Jn an action to recover for legal malpractice. Plaintiff must plead and prove that the attorney
failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that “the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages.” Gallet. Dreyer and Berkey. LLI’ v Basile_ 141 AD 3d 405. 406 (1st Dept 20 I 6) (internal citation omitted). In this case it is undisputed that whether or not Plaintiff will sustain any damages as a result of the alleged malpractice is unknown able at this time. Although damages in a legal malpractice case may include “litigation expenses incurred in an attempt to avoid, minimize or reduce the damage caused by the attorney’s wrongful conduct.”” Rudolph v Shayne Dachs Stanisci, Corker & Sauer, 8 NY 3d 438, 443 (2007) (internal citation omitted), such potential damage cannot save plaintiff’s claim here because the damages that allegedly were proximately caused by the alleged malpractice are unknown.
The motion must be granted because the malpractice claim is premature (see Pudalov v
Brogan. !03 Misc 2d 887. 992, 427 NYS 2d 345, 348 [Sup. Ct.. Nassau Cty 1980] [dismissing
malpractice counterclaim as premature where underlying personal injury action had not yet been reached for trial): and Hallman v Kantor, 22 Misc 3d l 122[A]. 880 NYS 2d 224 [Sup Ct Nassau Cty 2009] holding that as there had been no determination issued by the Surrogate imposing liability against plaintiff no injury could be shown]).
The first cause of action shall be dismissed without prejudice to renew should the Project
yield Net Proceeds in excess of $32 million payable to NP member. “