In Priceless Travel, Inc. v Wender Law Group, PLLC 2021 NY Slip Op 30572(U) February 26, 2021 Supreme Court, New York County
Docket Number: 151867/2020, Judge Margaret A. Chan discusses the necessary pleading of damages to avoid dismissal at the pre-answer stage.
“As for the motion to dismiss based on the failure to adequately allege
damages, the court notes that “[a]n action for legal malpractice requires proof of the attorney’s negligence, a showing that the negligence was the proximate cause of the plaintiff’s loss or injury, and evidence of actual damages” (Pellegrino v File, 291 AD2d 60, 62 [1st Dept], lv denied 98 NY2d 606 [ 2002]) At issue here is whether
plaintiff has sufficiently alleged that it has “suffered actual and ascertainable damages” (Busino v Meachem, 270 AD2d 606, 609 [1st Dept 2000]). In general, damages may not be speculative, possible, or imaginary, but must be capable of being proven with reasonable certainty and directly traceable to the conduct or negligence of the defendant (see generally Kenford Co. v Erie Cty., 67 NY2d 257,
261 ). At the same time, “to survive a … preanswer dismissal motion, a pleading need only state allegations from which damages attributable to the defendant’s conduct may be reasonably inferred” (Lappin v Greenberg. 34 AD3d 277, 279 [1st Dept 2006] [internal citations omitted]). Significantly, at the pleading stage, a plaintiff “is not obligated to show…that it actually sustained damages” (Inkine Pharmaceutical Company, Inc. v Coleman, 305 AD2d 151, 152 [1st Dept
2003]) [internal citation and quotation omitted]).
Under this standard, the court finds that plaintiff’s allegations that
defendants’ malpractice resulted in its loss of licensing fees that would have been paid by MasterCard for the use of the Mark and caused plaintiff to incur legal fees are sufficient to state a claim for damages attributable to defendants’ malpractice. And, contrary to defendants’ argument, at the pleading stage, plaintiff need not show that MasterCard would have actually paid plaintiff licensing fees for the Mark or that plaintiff was in a financial position to defend the Mark (see Inkine Pharmaceutical Company, Inc., 305 AD2d at 152 [plaintiff sufficiently stated a claim for legal malpractice based on allegations that “defendants’ negligence in failing to timely file the Asian patent on the pharmaceutical product at issue caused a substantial diminution of the value of its worldwide license”]).”