Rudovic v Law Off. of Timothy A. Green  2021 NY Slip Op 06873 Decided on December 8, 2021 Appellate Division, Second Department states the bedrock principles upon which a good legal malpractice is based.  How they apply to the underlying case is left to the reader’s imagination.  The Appellate Bench would aid the legal malpractice bar in giving slightly more explanation of why the proximate cause pled in the complaint was insufficient or why there could be no better hypothetical outcome versus the actual outcome.

“In determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88; see Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506). A cause of action alleging legal malpractice should set forth facts showing that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1505; Dempster v Liotti, 86 AD3d 169, 176). The plaintiff must plead actual ascertainable damages resulting from the attorney’s negligence (see Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506; Dempster v Liotti, 86 AD3d at 177).

Here, the Supreme Court properly determined that the complaint failed to state a cause of action to recover damages for legal malpractice. Viewing the complaint in the light most favorable to the plaintiff (see Leon v Martinez, 84 NY2d at 87-88), it failed to plead specific factual [*2]allegations as to proximate cause. The plaintiff failed to allege facts that would demonstrate that, but for the defendants’ alleged negligence, there would have been a more favorable outcome in the underlying action or that the plaintiff would not have incurred any damages (see Benishai v Epstein, 116 AD3d 726, 728; see also Cohen v Hack, 118 AD3d 460, 460). The complaint also failed to adequately allege actual, ascertainable damages (see Denisco v Uysal, 195 AD3d 989, 991; Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506).”