Most people as well as a lot of lawyers stop their legal malpractice analysis at the first element:  departure from good practice.  The battle in real legal malpractice cases almost always takes place in the third element:  “but for” proximate causation.  Lindenwood Vil., Section C Coop. Corp. v  Denenberg ,2020 NY Slip Op 32572(U) August 6, 2020 Supreme Court, New York County,  Docket Number: 160882/2019 Judge: Kathryn E. Freed is a good example.  Delay in filing the Notice of Entry from the Appellate Division allowed a party to seek leave to the Court of Appeals a long time later.  A good legal malpractice case?

“Since 2010, defendants represented Lindenwood and its managing company, Delkap Management (“Delkap”) (collectively “respondents”), in a proceeding before the SDHR against
allegations by a disabled shareholder that respondents denied her request to keep a dog as a reasonable accommodation and retaliated against her by removing her parking privileges in violation of NY Executive Law§ 296 (Doc. 17). In September 2013, an administrative law judge for the SDHR issued a recommendation that respondents pay complainant $5,000 in compensatory damages for mental anguish and humiliation as a result of the discrimination, with 9% interest; $10,000 in punitive damages; and civil fines in the amount of $5,000, with 9% interest, to be paid to the State of New York (Doc.17). The Acting Commissioner of the SDHR adopted the recommendation in a final order dated December 24, 2013 (Doc. 17).

Respondents appealed the Acting Commissioner’s final order and, in the 11/30/16 order,the Appellate Division, Second Department modified the agency’s determination and remitted thematter to the SDHR for a new award as to compensatory and punitive damages, as well as the civilpenalty, each in an amount not to exceed $2,500 (Doc. 18) (see Delkap Management, Inc. v NewYork State Div. of Human Rights, 144AD3dat 1148-1149).

It is undisputed that defendants failed to serve the SDHR with the 11/30/16 order, with notice of entry (Doc. 15 iJ 6). Instead, in August 2018, the SDHR served Lindenwood with notice
of entry and moved for leave to appeal the Appellate Division’s decision, which motion wasgranted by the Court of Appeals (see Delkap Management, Inc. v New York State Div. of Human Rights, 32 NY3d 910 [2018]). By decision and order dated March 26, 2019, the Court of Appeals reinstated the SDHR’s original decision and order in its entirety, finding that the Appellate Division erred in setting aside a portion of the SDHR’ s determination (Doc. 19). ”

“Since Lindenwood’s legal malpractice claim relies predominantly on the speculative conclusion that “[h]ad the [d]efendants complied with CPLR 5513, the case could not have
continued to the Court of Appeals,” the allegations are insufficient to support a legal malpractice claim. Although this Court is persuaded that defendants’ delay in filing the notice of entry was a lapse in the exercise of professional diligence (see generally Lappin v Greenberg, 34 AD3d 277, 279-280 [1st Dept 2006]), it cannot be ascertained whether a more prompt filing of the notice of entry by defendants would have prevented the SDHR from appealing. Moreover, the Court of Appeals rendered its decision based on the same facts that would have been presented to the Court had the SDHR filed its appeal sooner. Thus, the damages awarded to the complainant, the civil penalty, and all associated costs incurred for defending the appeal would have been the same even had there been no delay in filing the notice of entry. Based on the foregoing, Lindenwood’s factual
allegations fail to support the element of proximate cause (see Levine v Lacher & Lovell-Taylor, 256 AD2d at 149-150; Gersh v Nixon Peabody LLP, 2017 NY Slip Op 30363[U], 2017 NY Misc LEXIS 682, * 18-19 [Sup Ct, NY County 2017]; Caso v Sklarin, 2016 NY Misc LEXIS 6863, * 12-13 [Sup Ct, NY County May 26, 2016, No. 159192/2015]).”