With a serious injury, and with the best of intentions, Plaintiff hires a well regarded law firm to obtain compensation.  The law firm sues an incorrect governmental entity, in this case the City of New York rather than the U.S.  Is this legal malpractice?  To answer this question we revert to the four elements of legal malpractice:  departure (suing the wrong party), proximate cause (being unable to sue the correct party because of the passage of time), “but for” causation (discussed below) and ascertainable damages.  Here, dismissal is sought on the basis that plaintiff could not have won the case, and therefore, there is no “but for” causation.  in Postiglione v Sacks & Sacks, LLP  2020 NY Slip Op 31164(U) April 17, 2020
Supreme Court, Kings County Docket Number: Index No. 513779/2019 Judge: Edgar G. Walker, the motion is denied.

“On April 13, 2016, plaintiff sustained physical injuries at a construction site located at Floyd Bennett Field in Brooklyn, New York (Hangar B or the site) when a second-floor concrete floor walkway, upon which he was standing, collapsed. The site is owned by the federal government (government) and managed by the United States National Park Service (NPS). NPS contracted with Nagan Construction (Nagan) to repair storm damage caused by Super Storm Sandy. Nagan, in turn, subcontracted with Global International Windows, LLC (Global) to remove and install windows at Hangar B. Plaintiff was Global=s principal and sole owner. On August 30, 2016, plaintiff commenced an action for personal injury under the Labor Law against Nagan, as the general contractor, and the City of New York (the City), as owner and/or lease holder of the construction site (see Postiglione, et ano. v City of New York, et ano., Sup Ct, Kings County, index No. 515241/16 [the underlying action]). In that action, which is still pending, plaintiffs were initially represented by attorney Weir of the Sacks firm.”

“To recover damages for legal malpractice, a plaintiff must demonstrate that (1) the attorney Afailed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession,@ and (2) that the attorney=s action or inaction proximately caused plaintiff to sustain Aactual and ascertainable damages (Rudolph v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; see also Gorunkati v Baker Sanders, LLC, B AD3d B, 2020 NY Slip Op 00406 [2d Dept 2020]). Proximate cause is established by demonstrating that the plaintiff would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence (see Rudolph, 8 NY3d at 442; Davis v Klein, 88 NY2d 1008, 1009-1010 [1996]). To establish a prima facie case of legal malpractice, a plaintiff must demonstrate that he or she would have succeeded on the merits of the underlying action but for the attorney=s negligence (see Grace v Law, 24 NY3d 203, 211 [2014]; Davis, 88 NY2d at 1009-1010). Conclusory allegations of damages or speculative injuries are  insufficient to sustain a legal malpractice action (see Gail v Colon-Sylvain, 151 AD3d 698, 700 [2d Dept 2017]).”

“Thus, plaintiffs may have a viable negligence claim against the government if they show that an NPS or government employee was responsible for plaintiff=s injuries. The bulk of defendants= argument is that Nagan was an independent contractor rather than a government employee, and therefore, the government cannot be held liable for Nagan=s tortuous acts or omissions (see Roditis, 122 F3d at 111). While defendants may be correct that the project specifications and contracts demonstrate that Nagan contractually assumed responsibility for work site operation and safety while construction was pending, plaintiffs= claim is not based solely Nagan=s actions (see Haskin v U.S., 569 Fed Appx 12, 16 [2d Cir 2014]). Here, the government may still be liable for Theresa=s negligence under the FTCA (28 USC 1346 [b]; Haskin, 569 Fed Appx 12; Esgrance v United States, US Dist Ct, SD NY, 17 Civ
8352, Oetken, J., 2018; Jappa v PJR Const. Co., Inc., US Dist Ct, SD NY, 84 Civ 3067, Conner, J., 1985). Indeed, it has been held that one may assume a duty, which initially did not exist, and may be held liable where his or her affirmative action adversely affected that plaintiff and he or she failed to act reasonably (see Arroyo v We Transport,  Inc., 118 AD3d 648, 649 [2d Dept 2014]; Gordon v Muchnik, 180 AD2d 715 [2d Dept 1992]).

Accepting the facts pleaded in the instant complaint as true, construing the complaint liberally, permitting plaintiff=s affidavit to correct any pleading defects and according the plaintiffs every possible favorable inference, the court finds that the allegations, while sparse, state a legal malpractice claim (see CPLR 3211 [a] [7]; Kolchins, 31 NY3d at105-106 [2018]). The allegations that Theresa, in the scope of her employment, directed plaintiff where he could and could not walk and that plaintiff fell in an area that Theresa represented was safe arguably state a negligence claim against her under the FCTA had they been asserted in the underlying action (28 USC 1346 [b]; Esgrance, supra; Jappa v PJR Const. Co., Inc., supra). Therefore, plaintiffs have met their burden of demonstrating that they could have prevailed on a personal injury claim against NPS but for defendants= negligence in suing the City, while permitting the statute of limitations for suing the government to lapse (see Grace, 24 NY3d at 211; Rudolph, 8 NY3d at 442; Davis, 88 NY2d at1009-1010). As a result, the defendants= motion to dismiss the complaint for failure to state a claim is denied.”