Privity is a keystone in the legal malpractice world.  Here. in Jarmuth v Wagner    2022 NY Slip Op 33698(U)  October 28, 2022  Supreme Court, New York County  Docket Number: Index No. 161816/2019 Judge: Dakota D. Ramseur a co-op shareholder sues the Co-op’s attorney derivatively on behalf of the Co-op.

“In December 2019, Plaintiff Sandra Jarmuth, on behalf of shareholders in 36 East 69th Corp. (the co-op), commenced this derivative suit to recover monetary damages arising from
defendants Steven Wagner, Bonnie Berkow, and the Law Offices of Wagner Berkow LLP’s representation of the co-op in an underlying property-damage action. Plaintiff asserts that
defendants committed legal malpractice when Wagner allegedly advised the co-op to drop a cross-claim for attorneys’ fees it had asserted in the underlying action. The malpractice, plaintiff alleges, prevented the co-op from recovering on $150,000 in legal fees. In Motion Sequence 001, defendants move to dismiss the action pursuant to CPLR 3211 (a) (1), {a) (5), and (a) (7). Likewise, in Motion Sequence 002, the co-op, as a nominal defendant, moves to dismiss pursuant to those same rules. For the following reasons, the motions are granted, and the complaint is dismissed.”

“As to defendants’ motion via CPLR 3211 (a) (7), to properly plead a cause of action for legal malpractice, a plaintiff must allege: (1) the existence of an attorney-client relationship; (2)
negligence on the part of the attorney or some other conduct in breach of that relationship; (3) the attorney’s conduct was the proximate cause of the injury to plaintiff; and (4) that plaintiff suffered actual and ascertainable damages. (Tinter v Rapaport, 253 AD2d 588 [1st Dept 1998].) Stated somewhat differently, a plaintiff must show that the attorney failed to exercise the ordinary reasonable skill and knowledge possessed by a member of the legal profession and the attorney’s breach is a proximate, or “but for,” cause of the plaintiffs injuries. (See Benishai v Epstein, 116 AD3d 726, 727 [2d Dept 2014].) Where a plaintiff fails to plead any element of the legal malpractice standard, the defendant is entitled to a dismissal of the complaint under CPLR 3211 (a) (7). (See Zarin v Reid & Priest, 184 AD2d 385,387 [1st Dept 1992].) Even viewing the complaint in the light most favorable to plaintiff, plaintiff has failed to demonstrate defendant’s negligent or incompetent conduct, that the alleged acts or omission forming the basis of plaintiffs cause of action were the proximate cause of plaintiffs injuries, or that plaintiff suffered ascertainable damages.

Plaintiff summarized the facts constituting her legal malpractice claim as follows: ( 1) the Alteration Agreement provides that Nunnerley would indemnify the co-op for any damages and attorneys’ fees arising from her renovation; (2) Witbeck suffered damages due to Nunnerley’s renovations and brought a claim; (3) upon defendants’ advice, the co-op asserted that a crossclaim against Nunnerley and advised the co-op it had a strong likelihood of success; ( 4) nevertheless, defendants-the attorneys-did not prosecute a claim for legal fees; and (5) the coop suffered $150,000 in damages because the settlement did not include reimbursement for the co-op’s attorney’s fees. (NYSCEF doc. no. 41, plaintiff memo of law; NYSCEF doc. no. 10 at ,r,r 20, 22, and 24, complaint.) Perhaps recognizing the above-stated allegations are entirely conclusory, plaintiff further alleges that defendants failed to prosecute (or advised the co-op not to prosecute) because they believed that the co-op would have to be the prevailing party in the Witbeck action to recover against Nunnerley-a position, plaintiff contends, that was demonstrably incorrect.

Still, after reading plaintiffs opposition papers, it is unclear to the Court which acts and omissions constitute plaintiffs claim for malpractice. As mentioned above, plaintiff highlights
the fact that defendants did not prosecute the co-op’s cross-claim but the Court is unsure where, specifically, the negligence is in “never pursuing a claim” when the co-op itself is responsible for those decisions.3 Similarly, the Court is unsure how plaintiff can argue that the co-op entered the settlement agreement-and forwent the cross-claim-based on erroneous advice provided by defendants when plaintiff acknowledges defendants provided correct advice about the availability of the cross-claim. (NYSCEF doc. no. 10 at ,r22 [“Defendants repeatedly and correctly advised the Shareholders and co-op that they had a strong cross-claim against Nunnerley.”])4 To resolve the tension here, plaintiff alleges that something changed, yet the pleadings require the court to attribute the change to defendants’ malpractice based solely on legal conclusions. From 2013 through 2015, defendants were allegedly giving faulty advice, apparently on an on-going basis, but the pleadings contain no factual allegations-no communications of any kind-that describe or relate to defendants’ advice.”