As is common to legal malpractice cases, Plaintiffs are held to the burden of proving that “but for” the negligence of the attorney, there would have been a different or better outcome. In Jean-Paul v Rosenblatt 2022 NY Slip Op 04958 Decided on August 17, 2022 Appellate Division, Second Department we see how that rule applies to a situation in which a landlord is granted a judgment of possession, the attorney fails to tell the landlord of the victory and the tenant successfully moves to vacate in the absence of opposition.
“In February 2019, the plaintiff commenced this action against the defendants to recover damages for legal malpractice alleging, inter alia, that they were negligent in failing to inform him about a judgment of possession that they had obtained in his favor in an underlying housing court action and in failing to enforce it. As is relevant to this appeal, the defendants cross-moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. In an order dated February 28, 2020, the Supreme Court granted that branch of the defendants’ cross motion. The plaintiff appeals.
The Supreme Court properly granted that branch of the defendants’ cross motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint. Where, as here, the defendants submitted evidentiary material in support of that branch of their cross motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint, the criterion becomes whether the plaintiff has a cause of action, not whether one is stated (see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 845).”
“Even if the defendants had been negligent in the underlying action, the plaintiff’s contentions that the housing court would have decided the motion of the tenant in the underlying action to vacate the judgment of possession in the plaintiff’s favor such that the tenant would have been promptly evicted, and that the plaintiff would not have incurred damages in the form of additional unpaid rent and legal fees while the matter continued, are merely speculative (see Hall v Hobbick, 192 AD3d at 779; Bua v Purcell & Ingrao, P.C., 99 AD3d at 847-848).
Accordingly, the Supreme Court properly granted that branch of the defendants’ cross motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.”