Legal malpractice is different from almost all other forms of litigation, requiring not only the pleading of “but for” causation, but also a very robust explanation of how things “should’ have gone, but for the negligence of the attorneys. In Buchanan v Law Offs. of Sheldon E. Green, P.C. 2023 NY Slip Op 01980 Decided on April 19, 2023
Appellate Division, Second Department Supreme Court denied the motion, but the Appellate Division honed in on the lack of a case within the case details.
“In an action, inter alia, to recover damages for legal malpractice, the defendant Law Offices of Sheldon E. Green, P.C., appeals from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered February 8, 2021. The order, insofar as appealed from, denied those branches of that defendant’s motion which were pursuant to CPLR 3211(a)(7) to dismiss the first cause of action insofar as asserted against it, and, in effect, the third cause of action.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendant Law Offices of Sheldon E. Green, P.C., which were pursuant to CPLR 3211(a)(7) to dismiss the first cause of action insofar as asserted against it, and, in effect, the third cause of action are granted.”
“Here, the plaintiffs alleged that the decedent died after a brief admission to a drug and behavioral treatment facility, that the defendants agreed to represent the plaintiffs in an underlying action against the treatment facility and the medical providers who treated the decedent, that the defendants committed legal malpractice by failing to timely complete service of process in an action commenced in state court and by failing to commence a wrongful death cause of action in federal court before the applicable statute of limitations expired, and that the defendants’ failures resulted in the plaintiffs being unable to recover on their wrongful death causes of action. Absent from the complaint are any factual allegations relating to the basis for the plaintiffs’ purported wrongful death causes of action against the treatment facility or medical providers.
Accepting the facts alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference, the complaint failed to set forth facts sufficient to allege that the defendant’s purported negligence proximately caused the plaintiffs to sustain actual and ascertainable damages (see Joseph v Fensterman, 204 AD3d at 770-771). Even when considered with the documents submitted by the plaintiffs in opposition to the defendant’s motion, the complaint failed to allege any facts tending to show that, but for the defendant’s alleged negligence in failing to timely serve process in the state court action and in failing to timely commence an action in federal court, the plaintiffs would have achieved a more favorable outcome on their wrongful death causes of action (see Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018; see also Denisco v Uysal, 195 AD3d 989, 991; Weiner v Hershman & Leicher, 248 AD2d 193, 193; cf. Aristakesian v Ballon Stoll Bader & Nadler, P.C., 165 AD3d 1023, 1024). Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was to dismiss the first cause of action insofar as asserted against it.”