Speculation on how a judge will rule can sometimes be elided, sometimes not.  Denisco v Uysal  2021 NY Slip Op 04118 Decided on June 30, 2021 Appellate Division, Second Department was an unsuccessful example.

“In August 2015, the plaintiff retained the defendants to represent him in connection with a claim for workers’ compensation benefits based upon injuries allegedly sustained by the plaintiff in the course of his employment on July 30, 2015. At a hearing, the plaintiff testified that he was injured on a work site while performing construction work for his employer when he climbed a ladder and twice hit his head on a sprinkler, causing him to fall off the ladder and land on his back and neck. However, the insurance carrier defending against the claim presented evidence that the plaintiff was not injured in the course of his employment, but rather after he left work when he “jumped out of . . . a moving car.” On February 19, 2016, the Judge who presided over the hearing denied the plaintiff’s claim, finding that the plaintiff’s injuries did not arise out of the course of his employment, and “were caused by an unrelated intentional injury.” On September 16, 2016, the Workers’ Compensation Board affirmed the determination to deny the plaintiff’s claim.”

“Here, even accepting the facts alleged in the complaint, as amplified by the plaintiff’s affidavit, as true, and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87), the plaintiff failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome on his workers’ compensation claim (see Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504; Janker v Silver, Forrester & Lesser, P.C., 135 AD3d at 910). The plaintiff’s allegations that the Judge who denied his workers’ compensation claim and/or the Workers’ Compensation Board would have credited certain evidence, including the testimony of alleged eyewitnesses, if such evidence had been presented by the defendants were speculative and conclusory (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d at 910; Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 118 AD3d 542).”