Plaintiff tried to use an expert’s report which summarized the estate’s account on a summary judgment opposition in Leeder v Antonucci
2021 NY Slip Op 03978 [195 AD3d 1592] June 17, 2021 Appellate Division, Fourth Department. It was submitted after oral argument of the motion.
“Addressing appeal No. 1, we conclude that the court properly granted the cross motion. “[A] necessary element of a cause of action for legal malpractice is that the attorney’s negligence caused a loss that resulted in actual and ascertainable damages” (New Kayak Pool Corp. v Kavinoky Cook LLP, 125 AD3d 1346, 1348 [4th Dept 2015] [internal quotation marks omitted]; see Leeder, 174 AD3d at 1469). Furthermore, “[c]onclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action” (New Kayak Pool Corp., 125 AD3d at 1348 [internal quotation marks omitted]). Here, defendant met his initial burden on the cross motion by establishing that plaintiff’s allegations of damages with respect to the estate cause of action are speculative (see id.; Lincoln Trust v Spaziano, 118 AD3d 1399, 1401-1402 [4th Dept 2014]). In opposition, plaintiff failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). With respect to plaintiff’s opposition, we perceive no error in the court’s rejection of the estate account summary that plaintiff submitted, [*2]which was purportedly prepared by a retained expert. Plaintiff did not submit the summary until nearly a month after the original oral argument on defendant’s cross motion (see Kopeloff v Arctic Cat, Inc., 84 AD3d 890, 890-891 [2d Dept 2011]). Contrary to plaintiff’s contention, the submission was untimely. The fact that the deadline in the court’s scheduling order for disclosure of expert witnesses had not yet passed did not relieve plaintiff of his burden to “lay bare his proof and show that a genuine question of fact exists” in opposition to the cross motion for summary judgment (Oot v Home Ins. Co. of Ind., 244 AD2d 62, 71 [4th Dept 1998]; see also CPLR 3212 [f]). In any event, the estate account summary is conclusory, speculative, and insufficient to raise a triable issue of fact (see generally Feldmeier v Feldmeier Equip., Inc., 164 AD3d 1093, 1099 [4th Dept 2018]).”