We’ve not heard the phrase before, but are familiar with the situation. Plaintiff gets into financial trouble and looks to fix a mortgage with a modification, a refinance, or some other method. Things go bad from there. Ramirez v Donado Law Firm, P.C. 2019 NY Slip Op 01244 [169 AD3d 940] February 20, 2019 Appellate Division, Second Department is an example.
“The plaintiffs allegedly were the victims of a foreclosure rescue scam perpetrated by the defendants Donado Law Firm, P.C. (hereinafter Donado Law), Valmiro Donado, and Roberto Pagan-Lopez (hereinafter collectively the defendants), among others. The plaintiffs commenced this action alleging, inter alia, violations of Real Property Law § 265-b and General Business Law § 349, as well as fraud, fraudulent inducement, fraudulent misrepresentation, breach of contract, and legal malpractice. The defendants moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them. The Supreme Court, inter alia, denied the motion, and the defendants appeal.”
“To recover damages for legal malpractice, 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 and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Dombrowski v Bulson, 19 NY3d 347, 350  [internal quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 ; Dempster v Liotti, 86 AD3d 169, 176 ). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830 ; Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., 159 AD3d 683, 684 ). Here, contrary to the defendants’ contention, the complaint sufficiently pleaded a cause of action to recover damages for legal malpractice (see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d at 830; Hershco v Gordon & Gordon, 155 AD3d 1007, 1009 ). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action sounding in legal malpractice insofar as asserted against them.”