Mid City Elec. Corp. v Peckar & Abramson 2023 NY Slip Op 01085 Decided on March 1, 2023 Appellate Division, Second Department cleanly lays out the most unique issue that arises in legal malpractice (and not in other) settings: “But for” the negligence, would there have been a better result? This is the “case within a case” legal malpractice issue. Here, the question is whether a missed appeal would have been won.

“The plaintiffs, Mid City Electrical Corporation (hereinafter Mid City) and its owners, Terric McFarlin and John J. Holzer, commenced this action, inter alia, to recover damages for legal malpractice against, among others, the defendants Peckar & Abramson, Charles E. Williams III, and Christopher Bletsch (hereinafter collectively the defendants). The plaintiffs alleged that by letter [*2]dated September 18, 2015, the New York State Department of Transportation proposed to terminate the status of Mid City as a disadvantaged business enterprise (hereinafter DBE). Thereafter, Mid City retained the services of the defendants to litigate a challenge to that proposal. After unsuccessfully appealing to the New York State Department of Transportation directly, the defendants commenced a proceeding pursuant to CPLR article 78 on behalf of Mid City to stay the termination of its status as a DBE. That proceeding was dismissed on the ground that Mid City failed to file an appeal with the United States Department of Transportation. The order and judgment dismissing that proceeding was affirmed by the Appellate Division, First Department (see Matter of Mid City Elec. Corp. v Metropolitan Transp. Auth., 148 AD3d 497, 498).”

“With respect to the legal malpractice cause of action insofar as asserted by Mid City against the defendants, the complaint was required to contain factual information showing that the attorneys’ actions, inter alia, proximately caused Mid City to sustain actual and ascertainable damages (see Gorbatov v Tsirelman, 155 AD3d 836, 838). “‘An attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if but for the attorney’s negligence, the plaintiff would have succeeded on the merits of the underlying action, or would not have sustained actual and ascertainable damages'” (Nill v Schneider, 173 AD3d 753, 755, quoting Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Denisco v Uysal, 195 AD3d 989, 991 [internal quotation marks omitted]).

Here, even accepting the facts alleged in the complaint as true, and according Mid City the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87), the complaint failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome regarding the termination of Mid City’s status as a DBE (see Rudovic v Law Off. of Timothy A. Green, 200 AD3d at 815; Denisco [*3]v Uysal, 195 AD3d at 991; Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 118 AD3d 542, 542). The allegation that Mid City lost the opportunity to pursue an administrative appeal, without any indication that the appeal would be successful, is insufficient to state a claim (see Coccia v Liotti, 70 AD3d 747, 754). Similarly, the allegation that Mid City would have been recertified as a DBE had the defendants requested a hearing, rather than having filed a written response to the initial letter proposing termination of its status as a DBE, is speculative and conclusory (see Densico v Uysal, 195 AD3d at 991).

Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the legal malpractice cause of action insofar as asserted by McFarlin and Holzer against them, but should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the legal malpractice cause of action insofar as asserted by Mid City against them.”

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.