Ward v Klein 2022 NY Slip Op 02153 [203 AD3d 1216] March 30, 2022 Appellate Division, Second Department represents the “no harm-no foul” analysis frequently applied to legal malpractice claims. Attorneys are allowed to withdraw from representation and often do. This fact pattern consistently appears in medical malpractice cases at about the time that the attorney must produce an expert. When difficulty arises, attorneys often drop out. Courts rarely allow a legal malpractice claim, in part, based on the successor counsel doctrine which says, in essence, that if successor counsel can solve the problem, then there is no case against the first attorney. Here is a variant:
“The plaintiff, who held a master plumber license from the New York City Department of Buildings (hereinafter the DOB), retained the defendants to represent her with respect to disciplinary charges brought against her by the DOB. The DOB ultimately determined to revoke the plaintiff’s license, and she allegedly further retained the defendants to challenge that determination in a CPLR article 78 proceeding. According to the plaintiff, the defendants timely commenced that proceeding by filing a petition, and the proceeding was transferred to the Appellate Division, First Department. The plaintiff alleged that the defendants then discontinued their representation of her, just before an impending filing deadline. The plaintiff retained another attorney, who obtained an enlargement of time. The plaintiff alleged that she was ultimately successful in her CPLR article 78 proceeding before the First Department.
The plaintiff, pro se, commenced this action against the defendants, inter alia, alleging causes of action sounding in breach of contract, legal malpractice, breach of fiduciary duty, and fraud, all arising out of the defendants’ representation of her during the CPLR article 78 proceeding. The defendants moved pursuant to CPLR 3211 (a) to dismiss the complaint. In an order entered March 6, 2019, the Supreme Court granted the motion, and the plaintiff appeals.”
“Here, the plaintiff failed to state causes of action sounding in breach of contract, legal malpractice, breach of fiduciary duty, and fraud, as she failed to adequately allege the element of [*2]damages with respect to each of those causes of action (see Denisco v Uysal, 195 AD3d 989 ; McSpedon v Levine, 158 AD3d 618, 621 ; Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848 ; Smith v Chase Manhattan Bank, USA, 293 AD2d 598, 600 ; see generally Greenberg v Joffee, 34 AD3d 426, 427 ).”