Ofman v Tenenbaum Berger & Shivers, LLP
2023 NY Slip Op 03471 Decided on June 28, 2023 Appellate Division, Second Department is a case which reversed dismissal of a legal malpractice claim.

“In August 2011, the plaintiff retained the defendants to prosecute an action, inter alia, to recover damages for breach of contract against a contractor who performed renovation work for the plaintiff in 2009 (hereinafter the underlying action). The plaintiff had commenced the underlying action in 2010 through different counsel. On July 9, 2019, a judgment was issued in the underlying action in favor of the plaintiff and against the contractor in the total sum of $541,188.24. According to the plaintiff, he was unable to collect on the judgment because the contractor had since sold his assets and moved to Italy.

In November 2019, the plaintiff commenced this action against the defendants to recover damages for legal malpractice, alleging that the defendants’ delays in prosecuting the underlying action prevented him from collecting on the judgment. The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The plaintiff filed an amended complaint as of right while the defendants’ motion was pending and opposed the defendants’ motion. In reply, the defendants requested that their motion be addressed to the amended complaint. In an order dated June 23, 2020, the Supreme Court granted the defendants’ motion. The plaintiff appeals.”

“Here, accepting the facts alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently states a cause of action to recover damages for legal malpractice. The amended complaint alleges that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by engaging in a pattern of undue delay in their prosecution of the underlying action, including by allowing the underlying action to be marked off the active calendar on two occasions and by failing to comply with certain court-ordered deadlines. The amended complaint further alleges that the defendants’ negligence proximately caused the plaintiff to sustain actual and ascertainable damages in that their delays in prosecuting the underlying action prevented him from being able to collect on the judgment that was eventually entered against the contractor (see Jean-Paul v Rosenblatt, 208 AD3d at 653; Aristakesian v Ballon Stoll Bader & Nadler, P.C., 165 AD3d 1023, 1024; Oberkirch v Charles G. Eichinger, P.C., 35 AD3d 558, 559; Khadem v Fischer & Kagan, 215 AD2d 441, 442). Contrary to the defendants’ contention, the plaintiff’s allegations relating to proximate cause, including the nature and value of the contractor’s alleged assets and when they were disposed of, were not impermissibly speculative or conclusory (see Davis v Farrell Fritz, P.C., 201 AD3d 869, 873).”