126 Main St., LLC v Kriegsman 2023 NY Slip Op 03758 Decided on July 12, 2023
Appellate Division, Second Department is a case where the Appellate Division took a look at the same materials presented to Supreme Court and simply reached a contrary view that the evidence of lost profits, alleged in the complaint and defended on a CPLR 3211 motion was simply not enough.

“ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint is granted.

In March 2018, the plaintiff commenced this action to recover damages for legal malpractice arising out of the defendants’ prior legal representation of it in connection with a purchase agreement of the plaintiff’s restaurant business. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground, inter alia, that the complaint failed to state a cause of action. The plaintiff opposed the motion. In an order dated May 13, 2020, the Supreme Court denied the defendants’ motion. The defendants appeal.”

“”‘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, quoting Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848; see York v Frank, 209 AD3d 804, 807). Here, the plaintiff failed to state a cause of action to recover damages for legal malpractice because the plaintiff’s allegation that the restaurant would have had increased profits but for the defendants’ alleged malpractice is [*2]conclusory and speculative (see York v Frank, 209 AD3d at 807; Denisco v Uysal, 195 AD3d at 991).”