Sometimes at oral argument an Appellate Court already has a decision pretty much written and is giving the parties a chance to air their dispute. Sometimes, as apparently in Halwani v Boris Kogan & Assoc., P.C. 2021 NY Slip Op 06039 Decided on November 04, 2021 Appellate Division, First Department, oral argument really [really] makes a difference.
“To establish a cause of action for legal malpractice, a plaintiff must prove that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community; proximate cause; actual and ascertainable damages; and that the plaintiff would have been successful in the underlying action had the attorney exercised due care (see Reibman v Senie, 302 AD2d 290, 290 [1st Dept 2003]). “Th[e] failure to establish proximate cause mandates dismissal of a legal malpractice action, regardless of an attorney’s negligence” (Berkowitz v Fischbein, Badillo, Wagner & Harding, 34 AD3d 297, 297 [1st Dept 2006]). At oral argument, plaintiff acknowledged that he offered no evidence that he would have prevailed on appeal in the underlying action but for defendant’s conduct. Thus, even if defendant’s failure to perfect an appeal may have been sufficient to plead a breach of duty, plaintiff’s allegations failed to establish that but for such failure he would have been successful on the appeal (see Hutt v Kanterman & Taub, P.C., 280 AD2d 379, 379 [1st Dept 2001], lv denied 96 NY2d 713 ).”