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 [1986]). 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”]).”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.