Sometimes with the statute of limitations staring at plaintiff, the question of whether the case is premature arises. There is, of course, a conundrum. Bring the case now (while the underlying case is still pending) and it is too early. Wait for the underlying case to resolve, and it will be too late.
Aydiner v Karasik Law Group, P.C. 2021 NY Slip Op 30781(U) March 15, 2021 Supreme Court, Richmond County Docket Number: 151944/2020
Judge: Ralph J. Porzio resolves the issue in a manner fair to both parties.
“To state a cause of action for legal malpractice, a plaintiff must allege “(1) that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession,’ and (2) that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages.” Cervini v. Zanoni, 95 AD3d 919, 920 [2d Dept 2012]. (See Kahlon v. DeSantis, 182 AD3d 588 [2d Dept 2020]). “To establish the element of 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 attorney’s negligence” Cervini v.
Zanoni, 95 AD3d 919, 920 [2d Dept 2012]. The key question in the instant Motion is whether Plaintiffs’ legal malpractice cause of action is premature based on Plaintiffs’ pending Order to Show Cause with respect to the Underlying Foreclosure Action. This Court finds that the answer to this question is yes.”
“This Court finds that since the elements of causation and damages in Plaintiffs’ legal malpractice cause of action are dependent on the outcome of the Order to Show Cause, such cause of action is premature and must be dismissed with leave to replead under CPLR §3211(a)(7).”